Standing Committee E

[Dame Marion Roe in the Chair]

Domestic Violence, Crime and Victims Bill [Lords]

New clause 42 - Powers of authorised officers executing warrants

'(1) After section 125B of the Magistrates' Courts Act 1980 (c.43) insert— 
 ''125BA Powers of persons authorised under section 125A or 125B 
 Schedule 4A to this Act, which confers powers on persons authorised under section 125A or 125B for the purpose of executing warrants for the enforcement of fines and other orders, shall have effect.'' 
 (2) After Schedule 4 to that Act insert the Schedule set out in Schedule (Powers of authorised officers executing warrants) to this Act.'. 
 —[Mr. Leslie.]
 Brought up, and read the First time. 
 Question proposed [this day], That the clause be read a Second time. 
 Question again proposed.

Marion Roe: I remind the Committee that with this we are discussing the following: Government new clause 43—Disclosure orders for purpose of executing warrants.
 Government new clause 44—Procedure on breach of community penalty etc. 
 Government new schedule 2—Powers of authorised officers executing warrants. 
 Government new schedule 3—Procedure on breach of community penalty etc. 
 Government amendments Nos. 125 and 126.

David Heath: I welcome you to the Committee this afternoon, Dame Marion. I was exploring the difficulties that could flow from Government new clause 42 and new schedule 2, which deal with the powers of authorised officers executing warrants. I was explaining my concerns about an individual who is probably very skilled and conscientious in what they do, but who nevertheless has not been trained and does not work within structures such as those of a police force, in which someone who holds the office of constable would work. The hon. Member for Beaconsfield (Mr. Grieve) appropriately widened the concerns, and it is a substantial concern to me that such an individual would not be trained in arrest. They will be trained if they have a good employer, but not all of them will necessarily be trained in that area.
 Those people will be working within a structure that has no obvious rank structure—there is no senior officer to whom they are responsible, as a police 
 constable would be responsible to a basic command unit commander or, in the final reckoning, to a chief constable—and no recognised complaints structure. Indeed, the Minister's failure to provide even a glimmering of a structure this morning suggests that that has not figured much in the Government's thinking so far. 
 There is also a real fear—although I do not want to overstate this—that occasionally an officer will take action in circumstances involving delicate community relations, for which we insist that police officers have special training. We go out of our way to ensure that they exercise their powers of arrest, and particularly their powers of search, properly. Indeed, a huge study has just been launched to ensure that police officers use the power of search appropriately. None of that applies to authorised officers. 
 I foresee a further operational problem. One advantage of not being able to effect a forced entry to premises or to make an arrest without a constable attached is that the local police will be aware of the circumstances, and of what is happening. There is therefore a clear opportunity for the local police commander to say, ''Hang on a minute, you will jeopardise a police operation if you do things in that way at that time.'' There is a real possibility that a court official could arrive halfway through a surveillance, blast their way through the door and start doing cack-handed searches while the crime squad waits outside, frustrated by the fact that its entire operation is being brought to naught by such action. 
 The Minister is smiling, as if that would not happen. Let him consider the history of operations in which more than one force was involved, or in which a force and Her Majesty's Customs and Excise have failed to communicate properly. If he considers all the opportunities for destroying what may have required many months of patient police work, he will realise that this is a real threat, which should be avoided. 
 For all those reasons, I am wary of the proposal. I want effective enforcement of court orders and fines imposed by a court. I want things to happen within the rule of law, and I want to ensure that everyone involved is properly trained, and that there is redress beyond the very basic redress of a civil remedy that the Minister seems to advocate in the case of an action that falls outside the scope of paragraph 2 of new schedule 2. We are not yet satisfied that that is the case. 
 I want to ask one direct question. The authorised officer is defined as an authorised officer as specified in the Magistrates' Courts Act 1980. Could that include, mutatis mutandis, the designated officers under the Courts Act 2003? It seems to me that although they would not normally be operating in those circumstances, there is a mix and match between them. There are fines officers appointed by the Lord Chancellor, there are designated officers under the Courts Act who are, effectively, appointed by the local magistrates bench, and there are these authorised officers. I want to ensure that we are talking about the same species in all instances, and that there is a 
 read-across between the different pieces of legislation. I look forward to hearing the Minister's response, because he has not yet convinced me that this is not a hefty sledgehammer with which to crack a relatively small nut.

Cheryl Gillan: I do not want to detain the Committee for long. I have said before that I would like the collection of fines to improve, and the Minister has told me that the level of collection under his jurisdiction has improved, which is a matter for great rejoicing.
 However, I know from other Front-Bench utterances that the Government will seek to rely increasingly on fines. It seems to me that these provisions are fairly draconian, in order to back up that policy; the level of fine collection must remain the same or improve, so that the Government's intentions are not defeated. 
 I am particularly worried about one aspect. On 30 June, the Minister sent a letter to me explaining these latest amendments, and it says that they would establish certain powers. One is a primary data-sharing power to enable the courts to demand access to data held by credit reference and financial institutions. I appreciate that that is a limited amount of information, but the demand itself may have unintended consequences. Therefore, I want to probe a little further what is in the Minister's mind. 
 It seems to me that the very act of demanding access to data held by a bank, a financial institution or a credit reference agency might in itself cause that bank, financial institution or credit organisation to draw adverse inferences about the individual who the courts have in their sights. How does the Minister view that demand from the court? Will it be accompanied by a proviso to ensure that the institution of which the inquiry is being made draws no adverse inferences from the inquiry? How will the citizen be protected? When the state takes for the courts powers that allow any financial institution and any credit reference organisation to be accessed, we have to ensure that there are no unintended consequences. 
 In the past—even some Committee members might know this—if people did not make payments on their American Express cards, the company was particularly vociferous in ensuring that their credit ratings went down all round the world. When someone is travelling a long distance and is away from home for six or eight weeks, that can be a bit embarrassing, because if they pay their credit card by cheque they have not been at home to do so. When they find that they have a bad credit rating that has followed them to the other end of the world, it can cause difficulties. I seek assurances from the Minister, because that is important.

Christopher Leslie: First, it would be useful to address the point about data sharing and the data disclosure order, which the hon. Lady raised. She made a reasonable point about the act of demanding rather than simply requesting. As I have said, I do not think that the data disclosure order will be required frequently, because I hope that through discussions and persuasive means we can get
 the consent of different public and private organisations to share data on the limited basis that we are talking about—using the national insurance number, address, name or date of birth for the purposes of preventing crime and ensuring that sentences are upheld. Where those orders need to be made—I can envisage such circumstances—we will have the coercive power to ensure that that data is relinquished to the court. That is justifiable.
 Some may have asked whether the provision is compatible with general human rights such as the right to privacy; in a sense, the hon. Lady's point touches on those issues. However, the provision is justified for the sake of preventing crime. The need to uphold the deterrent effect of sentences and sanctions gives us a justification for stepping into the realm of private data. That is part of the data protection arrangements that are already well entrenched. 
 The hon. Lady may not be familiar with this, but a pilot is taking place in south Yorkshire under provisions in the Courts Act 2003 for a register of judgments to be set up. Fines would be put on a register available to financial institutions. That would be an additional deterrent for individuals and would ensure that they paid their fines when they were due. We are testing that principle in the field to see how it works. It has received a lot of publicity, and many people who have felt that their credit rating may be affected by defaulting on criminal fines have been persuaded to pay them more readily. That is a perfectly legitimate incentive to give someone convicted of a criminal offence, to ensure that they pay their fine. I take on board the point that the hon. Member for Chesham and Amersham asked about, but as we need to ensure that the courts have the information to pursue enforcement, the provision is warranted and reasonable.

Cheryl Gillan: I was not aware of the pilot but I will be interested to see the outcome of it. I am worried, because surely a name, date of birth, national insurance number and address can be obtained from sources other than financial institutions and credit reference agencies—so why go to those lengths? This is effectively a ''name and shame'' policy; surely the courts and the Government can provide that information from their own records on individuals.

Christopher Leslie: Indeed, we hope that the bulk of the information is already in the public sector and in the public realm. However, we are finding that certain individuals manage to evade that possibility: they simply never put their names on the driving licence database, complete their tax returns or anything else. They manage to skip through society without recording themselves in a consistent and verifiable way. Yet, they will still be able to get credit, loans and access to resources through the private sector and the financial services industry, which, on occasion, quite happy to co-operate.
 In some circumstances we need the back-stop ability to say that we have this power, and we want the extra information. I am sure that the hon. Lady knows that although the public sector's computerised recording systems and many other databases are near-perfect, from time to time there is a loophole or 
 lacuna and things are missed out. We should be able to get the information from other sources, which is why the provision has been included. It will be interesting to see the outcome of the pilot in south Yorkshire concerning the deterrent effect. Although this measure will not have precisely the same effect, it is in harmony with those changes. 
 I shall deal with the points raised by the hon. Members for Beaconsfield and for Somerton and Frome (Mr. Heath). I am sorry that they are cautious about these measures and have used the word ''draconian'' and other doom-and-gloom terms. There are sufficient safeguards in place to ensure that they will work effectively. 
 Both hon. Gentlemen are concerned about complaints processes. We must not forget that civilian enforcement officers have been around for a long time and, from time to time, complaints have been made against them. Such a complaint goes to the manager of the enforcement section of the magistrates court committee. If no satisfaction is received at that stage, the complaint moves to the justices' chief executive of the magistrates court committee, whose adjudication on the complaint is normally final as far that that organisation is concerned. If any further redress is necessary, it falls to the courts to sort it out—for example, individual officers can be sued for trespass if they have used force, and so on. It is important not to neglect the fact enforcement officers will need guidance and training—which we already provide—particularly as they step up into the realm of approved enforcement activity. We will continue to do that. 
 The hon. Member for Somerton and Frome mentioned the onset of the new fines officer posts. The Courts Act 2003 will already be kicking in in many magistrates courts authorities. There is a significant package of training and best practice guidance rolling out throughout the country, not least in anticipation of unified administration, and I assure the hon. Gentleman that the necessary training for fines officers to operate these provisions satisfactorily will be incorporated in it. 
 There is a need to consider the adequacy of the complaints arrangements. Although I a little bit sceptical about whether that is necessary, I am aware that the White Paper published in March 2003, which considered enforcement and security industry issues in general, speculated about whether it might be possible for the Security Industry Authority—established as a statutory body—to contain a complaints board. We have not come to that conclusion in relation to criminal fine enforcement activity, but in the light of the comments made by the hon. Member for Beaconsfield, I will talk to my colleagues who are involved in that area of policy and see whether we can investigate that idea further. My feeling is that it is not necessary and the current provisions are suitable. 
 The hon. Gentleman concluded that we were talking about bailiffs. It is important not to regard all the individuals involved as bailiffs—or, as we traditionally know them, those involved in serving 
 distress warrants and sequestering or seizing goods to pay for debts. We are, by and large, talking about civilian fine enforcement officers who have warrants for arrest and arrest people, and take them to court using bail and no-bail warrants; they are already engaged with and trained in a number of relevant activities. We are talking about all officers authorised by the court to act on its behalf who are acting after due process has been gone through in respect of each of the individuals concerned. The individual will have been convicted of a criminal offence, will have a sentence outstanding and will already have been subject to attempts to enforce that sentence; the different avenues will have been fruitlessly explored. In extreme situations, a point may be reached where there is a need for face-to-face visits, arrest and, if necessary, entry to property to ensure that the sentence is upheld.

David Heath: I am grateful to hear about some of the different avenues. I am still a little confused about the differences between authorised officers in the Bill and designated officers and fines officers in the Courts Act 2003. Is one group a subset of the other, or is each group entirely distinct, in which case some will not have the powers that accrue from the new clause and proposed new schedule 4A to the specific category of authorised officers appointed under the Magistrates' Courts Act 1980?

Christopher Leslie: That is a fair point. The hon. Gentleman knows that the courts are in a transitional phase. We are changing from having 42 magistrates courts committees, which approve their own officers to execute warrants of the same type that can be executed by any civilian enforcement officer across the country, to a new system under unified administration wherein, in effect, civil servants will have the new powers once they become fines officers; that will give them the extra powers under the Courts Act. We anticipate that the individuals will largely be the same, although technically the post is different so it comes with requirements for training and expertise. The jobs will be similar and parallel, but fines officer posts will be introduced along with unified administration in April 2005.

David Heath: I am sorry to labour the point, but, in that case, the amendment does not give the powers to the right people. There is nothing in the Courts Act that redesignates people who are authorised officers under section 125A of the Magistrates' Courts Act 1980 as the officers who are referred to in the 2003 Act. I ask the Minister to look at that again, as there seems to be some disjunction.

Christopher Leslie: I will look at that again. Our intention is that the powers will apply to fines officers as they will be known from April 2005. I would have thought that there was an amendment to the 2003 Act relating to changes to the Magistrates' Courts Act 1980.

David Heath: I cannot find it.

Christopher Leslie: If the hon. Gentleman cannot find it, I shall certainly look. We want to make sure that the changes are technically watertight.
 The hon. Gentleman suggested that such powers should be exercised only by the police. As I said, it is 
 important that we try not to place the burden of court enforcement on the police on all occasions, which is what we might have to do if we continue with the requirement for having a police officer at all times.

Dominic Grieve: I do not share the view that the powers have to be exercised by the police—indeed, I am not 100 per cent. whether that was what the hon. Member for Somerton and Frome was saying. We agreed in respect of those who exercise the powers that we must be mindful of the impact that that exercise is likely to have, and that there should be adequate preparation. In particular, there should be proper mechanisms of accountability and consultation for what I fear could otherwise become a freelance operation. The Minister said that the officers in question are not bailiffs. Of course, they are not, but he knows that many of them will come from that background.

Christopher Leslie: I understand the point that both hon. Gentlemen are making, but there is sufficient structure and accountability in the courts themselves through the management of the enforcement sections and the justices' chief executives, which are responsible for managing them. There is a good structure in place for complaints, discipline, training and supervision.
 I was intrigued by the point that the hon. Member for Somerton and Frome made about the possibility of a police SWAT—special weapons and tactics—team camping outside someone's door, only for a hapless enforcement officer to come along and ruin it all by appearing on the scene. Of course, at present, enforcement officers knock on doors, make arrests, take people away and so forth, so any problems envisaged with the provisions in future should be occurring now, and we do not think that there are any. There are good relationships between police and court enforcement staff and there is liaison between them, and we hope that that will continue. However, that does not necessarily mean that enforcement officers should require a police officer to come with them whenever they are enforcing in a significant way, such as when they are searching or entering a property. 
 The hon. Member for Beaconsfield raised the issue of transferring community penalty breach warrants and asked how courts would be apprised of the full facts of a case if a different court had been considering it. I appreciate his experience in some of these matters. He suggested that courts sometimes do not have all the paperwork to hand. We will put in place systems that will improve the transmission of information from one court to another—indeed, transferring the whole order to another court should ensure that the information and files go there as part of that process. As we move towards improved information technology and better use of it by the courts, I am confident that those problems will begin to disappear. 
 The new clauses and new schedules are vital to the next phase of improving fine enforcement. Although I understand the points raised by Opposition Members, I regret that we have not focused sufficiently on the need to uphold the decision of the courts to collect compensation on behalf of victims. That would make 
 sure that the balance is shifted in favour of the victims of crime and the law-abiding public, and that we close loopholes for those who have been convicted of criminal offences. I believe that the new clauses and schedules will make an appreciable difference to the powers in the enforcement process, and I commend them to the Committee. 
 Question put and agreed to. 
 Clause read a Second time, and added to the Bill.

New clause 43 - Disclosure orders for purpose of executing warrants

'After section 125C of the Magistrates' Courts Act 1980 (c.43) insert— 
 ''125CA Power to make disclosure order 
 (1) A magistrates' court may make a disclosure order if satisfied that it is necessary to do so for the purpose of executing a warrant to which this section applies. 
 (2) This section applies to a warrant of arrest, commitment, detention or distress issued by a justice of the peace in connection with the enforcement of a fine or other order imposed or made on conviction. 
 (3) A disclosure order is an order requiring the person to whom it is directed to supply the designated officer for the court with any of the following information about the person to whom the warrant relates— 
 (a) his name, date of birth or national insurance number; 
 (b) his address (or any of his addresses). 
 (4) A disclosure order may be made only on the application of a person entitled to execute the warrant. 
 (5) This section applies to the Crown as it applies to other persons. 
 125CB Use of information supplied under disclosure order 
 (1) Information supplied to a person under a disclosure order, or under this subsection, may be supplied by him to— 
 (a) the applicant for the order or any other person entitled to execute the warrant concerned; 
 (b) any employee of a body or person who, for the purposes of section 125B above, is an approved enforcement agency in relation to the warrant; 
 (c) any justices' clerk or other person appointed under section 2(1) of the Courts Act 2003. 
 (2) A person who intentionally or recklessly— 
 (a) discloses information supplied under a disclosure order otherwise than as permitted by subsection (1) above, or 
 (b) uses information so supplied otherwise than for the purpose of facilitating the execution of the warrant concerned, 
 commits an offence. 
 (3) But it is not an offence under subsection (2) above— 
 (a) to disclose any information in accordance with any enactment or order of a court or for the purposes of any proceedings before a court; or 
 (b) to disclose any information which has previously been lawfully disclosed to the public. 
 (4) A person guilty of an offence under subsection (2) above is liable— 
 (a) on summary conviction, to a fine not exceeding the statutory maximum; 
 (b) on conviction on indictment, to a fine. 
 (5) In this section ''disclosure order'' has the meaning given by section 125CA(3) above.'' '. 
 —[Mr. Leslie.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 44 - Procedure on breach of community penalty etc

'Schedule (Procedure on breach of community penalty etc) (procedure on breach of community penalty etc) has effect.'.—[Mr. Leslie.]
 Brought up, read the First and Second time, and added to the Bill.

New clause 2 - Amendments to the Youth Justice and

'In section 17 of the Youth Justice and Criminal Evidence Act 1999 (c.23) (witnesses eligible for assistance on grounds of fear or distress about testifying) after subsection (4) insert— 
 ''(4A) Where the complainant in respect of proceedings relating to any form of molestation, including violence, involving the complainant, a cohabitant, a relevant child or associated persons, is a witness in such proceedings, the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness' wish not to be so eligible by virtue of this subsection. 
 (4B) For the purposes of this subsection, 'cohabitant', 'relevant child' and 'associated persons' mean a person as defined by section 62 of the Family Law Act 1996 (c.27) (meaning of ''cohabitants'', ''relevant child'' and ''associated person'') as amended by sections 2 and 3 of this Act''.'.—[Mrs. Gillan.]
 Brought up, and read the First time.

Cheryl Gillan: I beg to move, That the clause be read a Second time.
 The new clause is similar to the one tabled in the other place by Viscount Bridgeman. It is an attempt to get on record the Minister's views on the use of new technology. 
 There are new initiatives under way on the better treatment of witnesses, which we hope will bring great benefits. I refer in particular to the ''no witness, no justice'' initiative, which will help to make sure that a witness's needs are taken into account early in criminal court proceedings. I know that the Minister is familiar with that initiative. The new clause is concerned with, among other things, victims of domestic violence. We want to develop procedures that will ensure that victims have more certainty about the process of going to court. 
 In the experience of Victim Support, most victims are terrified at the thought of seeing their abuser, as we can well imagine; they are even quite frightened by the thought of seeing relatives of the abuser, because of the effect that domestic abuse has had on them. It is possible for the court to direct that a victim can give evidence from behind a screen or from a television-link room. Those are special measures, but they are not always requested or, indeed, provided. The amendment aims to give victims some certainty by making it a rebuttable presumption that special measures such as screens or a TV link will be used when the victim gives evidence in court. That would mean that right at the start of the process, when the victim reports the abuse and the possibility of 
 prosecution is being considered, a support worker, advocate, the police, or whoever has contact with the victim is able to explain to her the protection that the court can grant if she wishes to use those measures. 
 In the other place, there was some discussion about the fact that every victim has individual views, but the amendment will give victims the option to change their mind. Some people will decide on the day of the court appearance that they have reached the point where they want the defendant to see them giving evidence. The amendment does not prevent them from giving evidence in the usual fashion; instead, it offers protection to everybody. Many victims will receive the information about special measures and be relieved that the court process will not be so much of an ordeal. Any fear or worry that they have about having to face the defendant in court will be eliminated at that point—they will not have to wait, for example, until the early stages of the prosecution process, or even until the day of the trial. 
 To summarise what one Victim Support witness service staff member said, victims can reap the benefit of forward planning from day one. I hope that the Minister will consider accepting this protection.

Vera Baird: Since the 1998 publication of ''Speaking Up for Justice''—the Home Office sex offences review report—it has always been presumed to be likely that victims of domestic violence will automatically be entitled to special measures, in the same way that victims of offences of sexual violence have an automatic right to such measures unless they ask that they not to be given. That is largely because there is almost invariably a coincidence between physical domestic violence and sexual violence. Whether or not a prosecution is being brought for a sex offence, it is well known that there is a widespread connection between the two things. Therefore, if one category of person is deemed to be an vulnerable witness who merits such provisions, the other ought to be deemed to be the same.
 The fact that that presumption is not in place—the amendment would introduce it—does not mean that women who come to court for domestic violence cases cannot apply through the Crown Prosecution Service for special measures. The way that the hon. Lady has set out is much less satisfactory, because it leaves the matter until, at the earliest, the pre-trial review, which is a business hearing to organise how the trial will continue. It might even be dealt with on the day of the trial. The woman concerned will not know from the outset whether she has to face the perpetrator of her misery in court while giving probably very delicate evidence. Women's groups, such as Refuge and Women's Aid, and so on, who have briefed all Committee members, say that that is likely to be part of a forest of things that tend to deter women not only from making complaints, but from going through with them. It is not just that they may have to give evidence: they may not know whether they have to do so without the protections. 
 The difficulty with the second tier of protection, under which a woman would apply later for the 
 discretion to be exercised in her favour, is that being able satisfactorily to accomplish that depends on having appropriate officers and CPS staff present, who will be sensitive to the requests of the woman, or who will, even without her asking, reach out and invite her to say whether she wants such measures. That will not necessarily happen. It is odd that such vulnerable witnesses should be left, as it were, at the mercy of the expertise of an individual officer in an individual case, which may or may not be strong. 
 However, there is something to be gained from giving that category of women the same support that the category of sex offence complainants already has. The provision will do that. I would be interested to hear if there are any powerful reasons against it. To speculate before the Minister responds, one of them might yet again be the difficulty to categorise what is an offence of domestic violence. The new clause is designed to circumvent the absence of a definition of domestic violence by merely referring to an offence that involves 
''any form of molestation, including violence''.
 That is wide enough for anybody who comes into this category to be adequately covered. I invite the Government to take a serious look at the new clause.

David Heath: I do not need to add a great deal to what has been said by the hon. Member for Chesham and Amersham (Mrs. Gillan) and the hon. and learned Member for Redcar (Vera Baird).
 My hon. Friend the Member for Romsey (Sandra Gidley) and I have added our names to the new clause. We anticipate that the Government's response will be that it is unnecessary because what it does is already provided on the great bulk of occasions. I simply echo the point made by the hon. and learned Member for Redcar: there is a world of difference between telling someone who might be fearful, confused and dubious about bringing matters before a court, ''You will probably have this protection,'' and saying to them, ''You will have that protection right from day one.'' We are trying to give the greatest possible encouragement to witnesses and victims to make their complaint and to be prepared to take it through the court process. There are enough obstacles in the way. The new clause would simply remove a perceived obstacle—even if it often is not one in practical terms—with no detriment to the process. 
 The witness or victim will not have a lawyer appearing on their behalf to make the application; that will be done by the prosecution. However, the prosecution acts on behalf of the Crown, not the victim. That is an important distinction. One hopes that the prosecution team will always bear in mind the best interests of the victim as witness, that they will ensure that they are aware of the needs and wishes of that individual, and that they will make the application to the court. However, that will not necessarily be the case. This amendment is sensible in that it provides a failsafe mechanism. It does not prevent somebody from confronting their alleged assailant in court, if that is what they wish to do, 
 but it provides them with an automatic failsafe position, which gives them the protection they may well want in every circumstance. I hope that the Minister will give this suggestion serious consideration.

Paul Goggins: All Committee members agree that it is imperative that where it is clear that a victim is too frightened or distressed to give evidence, special measures should be available to help them. Section 17 of the Youth Justice and Criminal Evidence Act 1999 already enables victims of domestic violence to have access to special measures where the court decides that that is appropriate. It states that the court must take into account, among other things, such factors as the domestic circumstances of the witness, any behaviour towards the witness on the part of the accused, and the nature and alleged circumstances of the offence. The new clause would provide that the automatic access to special measures, which is given to victims of sexual offences and children under 17, is given also to victims of domestic violence. We have carefully considered these issues, and we have discussed them with representatives of Victim Support. We believe that the appropriate balance has been struck. The special nature of sexual offences and the sensitive nature of the evidence that is given mean that these cases are the only ones where special measures should be automatically available for adults.
 I agree with my hon. and learned Friend the Member for Redcar that there is often overlap between domestic violence cases and cases of sexual offending. We recognise that overlap, and where there are sexual offences the automatic entitlement will apply. She is right to say that, on the whole, the range of sexual offences is narrower than the range of domestic violence offences. That is another issue that we have weighed in the balance. 
 I know that there are concerns that special measures are not always applied for and that the courts are not always willing to allow victims of domestic violence to have access to them, although special measures have yet to be fully rolled out. I am happy to confirm that we recognise the need to ensure better case preparation and the appropriate assessment of needs by the police and prosecution. So far, special measures have had limited availability in the magistrates courts, partly because of the need for the right kind of technological facilities and partly because of the need to pilot some of the new measures. On 21 June, we published the findings of an independent evaluation of special measures, which, I am pleased to say, showed that special measures work. For instance, one third of witnesses given special measures said that they would not have given evidence without them. Since 3 June, screens, giving evidence in private and communication aids have all been available in the magistrates court. I am sure that that wider availability and the evidence that the measures work will encourage more applications to be made and granted. We will, of course, monitor the situation carefully to ensure that full use is being made of the special measures available. 
 The hon. Member for Chesham and Amersham mentioned the ''no witness, no justice'' initiative, and I am delighted that she spoke so supportively. That initiative will ensure that the needs of witnesses are assessed and met. Victims of domestic violence in need of special measures will be identified at an earlier stage and applications made at the pre-trial hearing. It is clearly very important that that decision should be made as early as possible.

Vera Baird: My hon. Friend has referred to interesting research into the efficacy of special measures. Does it break down so that we know what proportion of special measures grants have been made to those who are automatically entitled to them, and what proportion have been made on application?

Paul Goggins: I shall have to get back to my hon. and learned Friend on that interesting question. I too would like to know the answer. I will get in touch with her in due course.
 We need as much certainty as possible in the process so that victims approaching the ordeal that the trial process often is can do so in the knowledge that they are supported in every way. I hope that the Committee will see that the Government take special measures very seriously. We intend to make sure that they are available to victims of domestic violence when the court feels that that is appropriate. I expect the courts to be sensitive to the needs of victims of domestic violence and to grant special measures whenever they are necessary. For those reasons, I hope that the hon. Member for Chesham and Amersham will agree to withdraw the new clause.

Cheryl Gillan: I am delighted that the Minister has felt able to put on record the needs of domestic violence victims and acknowledge that they fall into a category of victims that should be eligible for special measures when they are vulnerable. That concerns everybody on the Committee.
 I appreciate that the availability of special measures—suites and the new technology—is a limiting and inhibiting factor, but in the light of the statistics that the Minister has revealed, I presume and hope that he will keep the issue under constant review. The common-sense view is that people should be able to opt out of the process, and should not have to try to obtain protection. That would set people's mind at rest much earlier in what is obviously a painful and traumatic procedure. However, I am grateful that we are moving in the right direction and that the Minister has put that on the record. I beg to ask leave to withdraw the motion. 
 Motion and clause, by leave, withdrawn.

New clause 8 - Mandatory risk assessment checklist

'After section 8 in Part II of the Children 1989 insert— 
 ''8B Mandatory risk assessment checklist 
 (1) When determining whether the child will be safe if contact or residence is granted to the abusive party, the court shall, so far as is practicable, have regard to the following matters— 
 (a) the nature and severity of the ill-treatment; 
 (b) how recently the ill-treatment occurred; 
 (c) the frequency of the ill-treatment; 
 (d) the risk of further ill-treatment occurring; 
 (e) the physical, sexual or emotional harm inflicted on the child or harm suffered by the child as a result of seeing or hearing ill-treatment of another person; 
 (f) whether the other party to the proceedings 
 (i) considers that the child will be safe while the abusive part has residence of, or contact with, the child; and 
 (ii) consents to the abusive party having residence of, or contact with, the child; 
 (g) the wishes of the child, if the child is able to express them, having regard to the age and maturity of the child; 
 (h) any steps taken by the abusive party to prevent further ill-treatment from occurring; 
 (i) any other matters as the court considers relevant.''.'. 
 —[Mr. Grieve.]
 Brought up, and read the First time.

Dominic Grieve: I beg to move, That the clause be read a Second time.

Marion Roe: With this it will be convenient to discuss the following: New clause 13—Use of recovery orders—
'In Part I of the Family Law Act 1986 (c.55) (child custody), after section 34 insert— 
 ''34A Use of recovery orders in cases involving either allegations of domestic violence or a potential risk to the child 
 (1) If an applicant claims that their partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in their name. 
 (2) If there is no residence order in favour of either parent, the court may grant a recovery order. 
 (3) The recovery order will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter. 
 (4) Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must— 
 (a) check their records to see whether either party has committed acts of violence; 
 (b) check to see whether either party is included on the register of domestic violence perpetrators; 
 (c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare. 
 (5) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will— 
 (a) not remove the child from the respondent; 
 (b) advise the respondent to seek legal representation; 
 (c) notify the court of their action immediately. 
 (6) If there is no record of violence and no reason to believe that the respondent or the child is at risk, the police will return the child to the applicant. 
 (7) Ex parte residence or contact orders should only be made if there is evidence that a party is wilfully refusing to attend court.''.'.
 New clause 31—Recovery orders in cases involving allegations of domestic violence or a potential risk to the child— 
'After Section 34 of the Family Law Act 1986 insert— 
 ''34A The use of recovery orders in cases involving allegations of domestic violence or a potential risk to the child 
 (1) If an applicant claims that his partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in his name. 
 (2) If there is no residence order in favour of either parent, the court may grant a recovery order, 
 (3) the order under subsection (2) will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter, in this instance. Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must— 
 (a) check their records to see if either party has committed acts of violence; 
 (b) check to see if either party is included on the register of domestic violence perpetrators; and 
 (c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare. 
 (4) Following the award of an order under subsection (2)— 
 (a) if records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will— 
 (i) not remove the child from the respondent, 
 (ii) advise the respondent to seek legal representation, and 
 (iii) notify the court of their action immediately, 
 (b) if records show that the respondent has a history of violence and the applicant has no history of violence, the police will return the child to the applicant and notify the court, 
 (c) if there is no record of violence and no reason to believe that the respondent or the child is at risk, the police will return the child to the applicant, 
 (d) if records show that both the applicant and the respondent have a history of violence, the police will immediately seek further instructions from the court and, if necessary, take appropriate steps to protect the child. 
 (5) The court shall not grant interim residence or contact orders unless there is evidence that a party is wilfully refusing to attend court. 
 (6) The court shall not disclose the address of a women's refuge publicly or give this information to any applicant or respondent or to their legal representatives.''.'
 New clause 32—Parental contact with children after separation in cases involving ill-treatment of the child or another person (No.1)— 
'After section 8 in Part II of the Children Act 1989 insert— 
 ''When determining whether the child will be safe if contact or residence is granted to the abusive party, the Court shall, so far as is practicable, have regard to the following matters: 
 (a) the nature and severity of the ill-treatment; 
 (b) how recently the ill-treatment occurred; 
 (c) the frequency of the ill-treatment; 
 (d) the risk of further ill-treatment occurring; 
 (e) the physical, sexual or emotional harm inflicted on the child or harm suffered by the child as a result of seeing or hearing ill-treatment of another person; 
 (f) whether the other party to the proceedings 
 (i) considers that the child will be safe while the abusive party has residence of, or contact with, the child; and 
 (ii) consents to the abusive party having residence of, or contact with, the child; 
 (g) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child; 
 (h) any steps taken by the abusive party to prevent further ill-treatment from occurring; 
 (i) any matters as the court considers relevant.''.'.
 New clause 33—Parental contact with children after separation in cases involving ill-treatment of the child or another person (No.2)— 
After section 8 in Part II of the Children Act 1989 insert— 
 ''(8A) Allegations of ill-treatment made in section 8 proceedings 
 (1) Where it is alleged that a party to the proceedings has inflicted ill-treatment on the child or on another person, the Court shall, as soon as practicable, determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings, whether the allegation of ill-treatment is proved. 
 (2) Where the Court is satisfied that a party to the proceedings (in this section referred to as the abusive party) has inflicted ill-treatment on the child or on another person, the Court shall not 
 (a) make any order granting the abusive party residence of the child; or 
 (b) make any order granting the abusive party contact (other than supervised contact) with that child, unless the child wants to see the abusive party and the Court is satisfied that the child will be safe while the abusive party has residence of or contact with the child. 
 (3) Notwithstanding subsection 8A(i), where in any section 8 proceedings, 
 (a) the court is unable to determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings whether or not an allegation of ill-treatment is proved; but 
 (b) the Court is satisfied that there is a risk of harm to the child, the Court may make any order under this Act that it considers necessary to protect the child.''.'.
 New clause 34—Recovery orders in cases involving allegations of domestic violence or potential risk to the child— 
'After section 34 of the Family Law Act 1986 insert— 
 ''34A The use of recovery orders in cases involving allegations of domestic violence or a potential risk to the child 
 (1) If an applicant claims that his partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in his name. 
 (2) If there is no residence order in favour of either parent, the court may grant a recovery order. An order under subsection (2) will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter, in this instance, before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must— 
 (a) check their records to see if either party has committed acts of violence; 
 (b) check to see if either party is included on the register of domestic violence perpetrators; 
 (c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare. 
 (3) Following the award of an order under subsection (2)— 
 (a) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will— 
 (i) not remove the child from the respondent 
 (ii) and advise the respondent to seek legal representation 
 (iii) notify the court of their action immediately, 
 (b) If there is no record of violence and no reason to believe that the defendant or the child is at risk, the police will return the child to the applicant. 
 (4) Ex parte residence or contact orders should only be made if there is evidence that a party is wilfully refusing to attend court''.'.

Dominic Grieve: New clause 8 is identical, apart from one line, to new clause 32, and I am conscious that other Committee members will want to speak to it. I shall not take up much of the Committee's time, because it is largely self-explanatory.
 This is a good time to consider the extent to which we should take special precautions in respect of children's contact and residence with one parent who has been abusive towards another. This is a controversial area in a number of respects. First, allegations of abuse are sometimes brought against one parent by another specifically to influence the outcome of contact and residence proceedings. We should not lose sight of that. Secondly, as we have already discussed, breakdowns of relationships can cause people to behave in ways that they may subsequently greatly regret. The fact that they do so does not in itself mean that they are unsuitable to either reside or have contact with their children. We must also bear that in mind with great care. 
 Having established those two facts, we need to face up to the reality that there are occasions when the behaviour of one parent towards another may provide compelling evidence about their suitability to have contact or residence. We know also that where there has been a history of abuse, it may pose considerable problems in the context of future contact or residence of children with the abusive parent.

Hilton Dawson: The hon. Gentleman correctly refers to the issue of disputes between adults in these painful cases. Does he share my concern that the views of children are often not heard or given enough credence in courtrooms?

Dominic Grieve: That is a difficult issue. Generally, the view has been taken that the courtroom setting is a bad place to get a child's view or opinion. That is why it is generally delegated to the Children and Family Court Advisory and Support Service to try to ascertain that opinion outside a courtroom setting. How good CAFCASS may be at achieving that is utterly dependent on the competence and experience of the person doing the assessment.
 In my professional career, I have regarded reports by CAFCASS or its predecessor with either delight or despair, depending on the way in which the assessment was carried out. Only last Friday at my surgery, a parent, perhaps improperly in the light of the issue of privilege, showed me a copy of a CAFCASS report about which they were complaining bitterly. Having read it, I thought it was a poorly drafted document by any standards. I have always taken the view, however, that bringing a child to court and asking them their opinion was a mistake. When I was first at the Bar, judges used to invite children in such cases to come to his or her room and have a chat, but I am not sure whether that helped matters much. 
 The new clause sets out a mandatory risk assessment checklist. I would hope that, in cases in which there has been abuse of one parent by another, the judge and the court would automatically run through such a checklist when deciding what to do. Most of the points raised are fairly obvious, but what is obvious and what happens in reality are not necessarily one and the same. There is an argument for having a mandatory risk assessment checklist, not because it must inevitably lead to the outcome of denying contact or residence with a particular parent, but because it might provide a useful tool to 
 concentrate the court's mind on the essential issues that need to be considered in such circumstances. 
 I would not have been willing to sign my name to new clause 32 and to ask that it be considered unless the checklist made it absolutely clear that the fact that there has been abuse by a parent does not necessarily mean that that person is unsuitable either for contact or residence. I want to emphasise that point in speaking to new clause 8. I am conscious that other hon. Members will want to speak to it and to provide different angles, and because it is so closely linked to new clause 32—it is virtually identical—I should like to conclude my remarks and listen to what they and the Minister have to say about it.

Hilton Dawson: I should like to begin with new clause 33, which needs to be taken with new clause 32, which, as the hon. Gentleman said, is almost identical to new clause 8. New clause 33 is vital to protect children. I deeply regret that the checklist in new clause 8—or new clause 32—is necessary. However, the deaths of at least 23 children during contact visits in recent years will focus our minds seriously on the issue. I regard that new clause as the most significant amendment to come before this Committee.
 I shall go through some of the cases. Three young children were asphyxiated by their father on a contact visit in March 2003. The four Mubiangata children were found dead in their father's burnt-out car after a contact visit. Tony Bangs, aged 12, was strangled by his father during a contact visit, and during his father's trial, it emerged that the father had also planned to murder his other two sons to take revenge on his wife for leaving him. In 2000, Daniella Hirst, aged two, was killed by her father during a contact visit in Lincolnshire. Saba and Zeeshan Zaidi, aged seven and six, were also killed in 2000 on a contact visit. The list is long, tragic and appalling. We must do everything that we can to stop adding to that dreadful list. The fact that contact and even residence orders are being made in respect of individuals with a record not only of domestic violence, but of offences against children, surely reveals that something is very seriously wrong in this country. 
 According to research undertaken by the National Society for the Prevention of Cruelty to Children and Women's Aid, among 178 Women's Aid organisations across the UK last year, 18 cases were uncovered in which unsupervised contact orders had been made in favour of fathers who had criminal records of schedule 1 offences—offences against children. In my previous existence, I took part in removing children from parents who endangered them by putting them in contact with schedule 1 offenders. The Committee and the whole House are entitled to ask what family courts are doing to address those issues. 
 We know that there are huge links between the issues of child protection and domestic violence. A Department of Health study of women's mental health undertaken last year acknowledged that almost three quarters of children on the at-risk register live in households where domestic violence occurs. The issues are completely interwoven, but the evidence is that family courts are ignoring the impact and severity of 
 domestic violence on family life and especially on children. 
 We know that the Government are concerned about the impact of domestic violence on children. They have introduced not only this Bill, but the soon-to-be-implemented section 120 of the Adoption and Children Act 2002, which makes the witnessing of domestic violence a criterion for the assessment of significant harm. We know from research conducted by the university of Leeds for the Department for Constitutional Affairs that allegations of domestic violence feature in 23 per cent. of contact and residence cases. Yet, in 2002, the courts granted 61,356 contact orders and refused contact on only 518 occasions—0.8 per cent. of cases. 
 We know that section 1 of the Children Act 1989 sets out the fundamental principle: 
''When a court determines any question with respect to . . . the upbringing of a child . . . the child's welfare shall be the court's paramount consideration.''
 We also know that that paramountcy principle has been compromised by subsequent case law; the 1995 Appeal Court judgment re O ruled that contact is almost always in the interests of the child. Actually, it is not. It is certainly not in the interests of more than 0.8 per cent. of children who come before family courts. 
 The children who reported to the recent Women's Aid ''Listening to Children'' campaign, which I hosted and the Under-Secretary of State for the Home Department, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), attended in Portcullis House last month, did not think that contact was in their interests. Kirsty, who is aged 15, did not think that it was. She told us that domestic violence makes her feel like she wants to kill herself. Chloe asked why the courts force children to see their dads when they are frightened of them. Another child asked, ''Why can daddy take me out of school and do I have to go?'' A very young child, for whom someone spoke their words, simply requested, ''Stop daddy from finding me.'' 
 Research quoted in the Oxford university family policy briefing on child contact with non-resident parents indicated that it is the nature and quality of parenting that is crucial, not contact: 
''The mere presence of fathers is not enough . . . To the extent that men remain involved in parenting after separation, or assume parenting practices they have not done before, they have a positive influence. As in intact families, the most effective way they can parent is by providing authoritative parenting . . . It is these aspects of parenting, encompassing monitoring, encouragement, love and warmth, that are consistently linked with . . . well-being''
 The messages of research are that we do not need to force on children contact with violent, abusive, potentially lethal parents, because it will almost always be in their best interests not to do so. How could it be otherwise? A survey of 130 abused parents conducted by Bristol Women's Aid in 1999 elicited the disclosure that 76 per cent. of the 148 children involved had been abused sexually, physically or 
 emotionally or had been neglected or even abducted during contact visits. 
 Let us keep things in proportion. Contact is important, safe contact is a child's right and the loss of contact on separation of parents can be a painful and damaging experience. To quote again from the Oxford university research: 
''Contact has potential value in terms of developing the child's sense of identity, preserving links with the wider family and providing an additional source of support for children. In ordinary circumstances a parent with an established relationship with the child should not have to prove that contact is in the child's interests. It does mean however that care needs to be taken not to overestimate the presumed benefits of contact either where there is no pre-existing relationship or where there are known risks. Where there is abuse or neglect, exposure to domestic violence or severe parental conflict, contact can be extremely damaging to children.''
 There were 23 deaths of children and more than 12,000 cases of domestic violence, yet contact was refused on only 518 occasions in 2002, the most recent year for which we have figures. 
 The Government have identified links between witnessing domestic violence and significant harm, and there are indubitably links between the violent abuse of women and the violent abuse of children. These vital amendments are the most important that we can make to the Bill. They do not set out to stop contact; they set out ways in which the voice of the child can be heard and, above all, they set out to make contact safe. They would allow courts to distinguish between private law cases involving domestic violence and those cases in which it is not alleged. They would require courts to ensure that children will be safe before making any order of residence or contact to a parent who has been violent. Nobody who is concerned about the importance of maintaining good contact with both parents should oppose these amendments, nor should any father's group demonstrating anywhere about contact. Above all, nobody from a Government who demonstrate, time and again, their commitment to the protection of children should oppose them either.

Sandra Gidley: I shall address most of my comments to new clause 13, which is tabled in my name and that of my hon. Friend the Member for Somerton and Frome. However, I shall briefly mention new clauses 8 and 32. They are important, because many of us are disappointed that, at a time when the Children Bill is being considered in another place and we are debating the Domestic Violence, Crime and Victims Bill, the Government have not sought to tackle the problems that both address. The system is not working, but the issue is contentious because nobody wants to deny parents the right to see their children. However, I question some of the cases in which unsupervised access has been granted. Many parents would say that their partners, although they were violent to them, would not hurt the children. However, we must bear in mind that a history of domestic violence is the biggest indicator that something could happen to children. We ignore that at our peril.
 New clause 13 is designed to highlight a problem about the way in which recovery orders are currently 
 used, to clarify the legal procedures for dealing with child abductions and to ensure that those measures are not used inappropriately in cases of domestic violence. That is necessary because violence perpetrators have been able to use seek and recovery orders to track down their victims and recover children from refuges. Often, if an abused woman flees from the family home taking the children with her, her violent partner seeks legal advice claiming that it is a case of child abduction—that is all that he has to claim. If he does not know where the woman has gone, and even if a woman is in a refuge and clearly does not want him to know where she has gone, he can apply in private law proceedings for an order requiring the disclosure of information as to the whereabouts of the child. He can also apply for a recovery order requiring the child to be returned to him. The person on whom the order is served must immediately disclose to the court all the information that they have about the whereabouts of the child. Any person with a legitimate interest in proceedings under section 8 of the Children Act 1989 can apply for orders under section 33 and 34 of the Family Law Act 1986. An application for a contact or residence order will usually be made simultaneously. 
 Those measures were specifically designed to deal with child abductions and were consequently intended to provide a quick procedure. Orders can often be made ex parte and without prior notice being given to the other party. Problems have arisen because an order can be served on any person who might have knowledge of whereabouts, so orders have been served on close relatives and even on refuges themselves to try to make them disclose that information. It is counter-productive and clearly not in the children's best interests if they are in a refuge and the refuge staff can be forced to give information about them. Because the system is meant to be rapid, the recovery orders make it possible for abusers to take action so quickly that the mother frequently has no time to seek legal representation or, as has happened in some cases, is unable to attend court to give her side of the story before the child is removed from her care. 
 In the fourth annual report of the Advisory Board on Family Law, the Children Act sub-committee made recommendations on search and locate orders following an investigation into the circumstances leading up to the murder of Georgina McCarthy. The report states: 
''When both parties are before the court, the court can make an informed decision about whether or not it is necessary and in the interests of the children to keep their whereabouts from the parents who have made the application.''
 However, history has made it clear that some judges have found it difficult to distinguish cases of domestic violence and cases of abduction. There are examples in which orders have been granted for children to be found and then returned to violent parents. When Women's Aid, which is particularly concerned about the issue, undertook a national survey in May 2003, seven refuge organisations reported problems with recovery orders. Clearly the current system is not working, and if the Government are not minded to change it, I should be interested to know how they are 
 going to make sure that the existing system works. I cite one example reported to Women's Aid: 
''A court order in another county issued an order for the woman's parents to disclose her address after she had fled to our area. There were police reports of domestic violence.''
 In many cases, there is insufficient time to ensure that such reports are taken note of. 
 There were objections when similar amendments were tabled in the other place. The excuse made was that there was no need for such an amendment 
''because Section 34(1) of the Family Law Act 1986 requires that a Part I order, which is more usually known as a Section 8 order under the Children Act 1989, is made before a recovery order and therefore the court will already have considered what is in the best interests of the child.''—[Official Report, House of Lords, 4 March 2004; Vol. 658, c. 875.]
 As I have said, however, this is an urgent procedure and there is no requirement for detailed welfare investigations to be carried out. A section 8 order, such as an interim residence order, can be made without notice at the same time as a recovery order is granted. The situation needs to be rectified so that recovery orders cannot be misused by perpetrators of domestic violence. Even if there has been an earlier order, it is no guarantee that the court has full, up-to-date information about the circumstances of the case. 
 Some change is necessary, because domestic violence perpetrators have been able to use recovery orders to track down their victims and to recover children from refuges. The tragic case of Georgina McCarthy shows how the system fails women. In 1997, she fled to Penzance Women's Aid with her one-year-old son. Her violent husband, Paul Russell, used section 33 of the Family Law Act 1986 to apply for information on the child's whereabouts. Georgina's case got off to a relatively good start because her solicitor managed to prevent the address of the refuge from being disclosed, but she was later warned that her husband was coming to Penzance to find her. She considered moving to another refuge, but decided to stay where she was because she was given no guarantee that the police in another police authority area would be so supportive, and in Penzance she felt supported by the police, Women's Aid and her solicitor and barrister. On 9 May 1998, her husband found her and killed her in front of the child. If that illustration is not graphic enough to show the Government how the system can go wrong, I do not know what more they need. As it stands, the system is not in the best interests of the child or the mother, and I urge the Government to improve it if possible.

Christopher Leslie: First, I thank hon. Members who were involved in tabling these new clauses, as they have facilitated a necessary and interesting debate. It will not be a great surprise to many hon. Members to hear that the Government have not drastically changed their position on these issues since they were aired in the other place. However, I have discussed them with Lord Filkin, who holds the relevant portfolio in the Department for Constitutional Affairs. He has had more direct dealings with some of these issues than me, but I agree with his stance on them.
 It is important to note that there are two groups within this group of new clauses: new clauses 8, 32 and 
 33 sit best together in one group, which I will address first. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), who has great expertise in this field, made a moving speech, but I should tell him that the Government's policy is that, in most cases, children benefit from contact with both parents after a separation. Children who have such contact generally do better at school and in later life. We are therefore committed to facilitating contact between children and both parents after separation when that is in the best interests of the child and is safe for the child and all family members, and only then. 
 We recognise that there are problems with parental access and contact after separation. Perhaps the most important issue for parents to consider on separation is the needs of their children. Most parents make their own contact and residence arrangements without needing to go to court. Only about one in 10 make court applications about matters concerning their children—principally about contact and residence issues. About 25 per cent. of those cases involve allegations of domestic violence. As my hon. Friend said, there have been some horrific and disturbing cases in which children, the resident parent or both have been murdered as a result of contact, but as I said the vast majority of parents do not seek court intervention to decide contact arrangements, and it is a sad fact that many of the tragic deaths that have occurred took place where contact was arranged without the involvement of the courts.

Hilton Dawson: Does that not reflect the fact that people have no confidence that their concerns about domestic violence, its effects and the effect of contact on children will be heard properly? That is because of the publicity given to terrible tragedies, and all the positive publicity gained by the likes of ''Spiderman'' and his colleagues.

Christopher Leslie: I understand my hon. Friend's point. I simply say that it should be the objective and aspiration of the Government and all parties to ensure that, where a resident parent has concerns about their own safety or that of their child, they have the confidence to seek protection through the family justice system, and the courts should be able to provide that protection.

Hilton Dawson: Is not the perfect way to engender confidence among parents to demonstrate to them, through the Bill, that there is a checklist and a mechanism by which such issues will be addressed? That way, they could go to court in the confidence and knowledge that the issues would be dealt with.

Christopher Leslie: It is important and possible for us to demonstrate that the child's safety is paramount in all circumstances. I do not necessarily conclude that to promulgate that view we must frame a piece of legislation in a particular way, when the existing legislative framework already provides adequate protection, although perhaps that protection is not being communicated effectively. We need to get across much more effectively the message that existing
 arrangements already require courts to have the welfare of the child as their paramount concern. That is what section 1 of the Children Act 1989 is all about, and that provision is already very strong.
 The 1989 Act also provides the court with a checklist to which the court must have regard. It includes consideration of the physical, emotional and educational needs of the child, and any harm that the child has suffered or is at risk of suffering. In reaching its decision, a court may request additional information, which is usually provided by the Children and Family Court Advisory and Support Service and potentially includes police checks and consultation with social services. The court may also direct the local authority to investigate the child's circumstances if it believes that the child may be at such risk of significant harm that a care or supervision order may be necessary. 
 I therefore believe that, to a certain extent, the 1989 Act already covers many of the concerns raised by my hon. Friend the Member for Lancaster and Wyre. Although I accept that he has concerns, I believe that the 1989 Act is sufficiently strong and is capable of providing robust protection and ensuring child safety.

Sandra Gidley: The hon. Member for Lancaster and Wyre referred to the fact that a number of schedule 1 offenders have been given unsupervised access to their children. How can the Minister be satisfied that the system is working when it clearly is not? I do not know what more evidence a judge needs. Is not the real problem that we have no sanction that we can use against judges when they clearly make the most peculiar decisions?

Christopher Leslie: That is not a serious point, but I understand that the hon. Lady is frustrated because she does not feel that the message has got across sufficiently well. We need to strike the right balance and make sure that we have a framework in which contact with parents can be maintained, but only when that is in the child's best interests, and when it can be maintained in a way that is safe for the child and members of that family.

Hilton Dawson: Will my hon. Friend give way?

Christopher Leslie: I would like to elaborate on how I believe that the arrangements provide the guarantees in the system before giving way again.
 Not all contact is the same. Some is direct, some indirect. Contact can be face-to-face for a short period or be conducted through writing and receiving letters. When a party makes an application for contact, the court may rule that contact should take place directly, indirectly or perhaps in a supervised environment if there are fears about safety. The Government have been concerned about that in recent years and we have invested extra resources into the creation of child contact centres. We have committed more than £8.5 million since 2000, taking into account the extra allocations made in March this year by my right hon. Friend the Minister for Children. That will pay for 14 new supervised contact centres in England—a welcome development that can be seen to be rooted in concerns about the safety of children. 
 It is also important to remember that the Children's Act sub-committee of the Advisory Board on Family Law reported on contact and domestic violence issues in 1999. CASC rejected a direct proposal to amend legislation to introduce a blanket presumption of no contact in cases of domestic violence on the grounds that it could not be applied while always putting the child's best interests at heart. Instead, it produced guidelines about how the court should deal with allegations of domestic violence in contact cases. The sub-committee promulgated those guidelines in April and May 2001, and as a result of a Court of Appeal judgment, the guidelines were partly incorporated into case law. They require that the courts should consider allegations of domestic violence at the earliest opportunity and decide whether the nature and effect of the violence is such that it is likely that any order of the court for contact will be affected. The guidelines require the courts to ensure that they are satisfied about the child and resident parent's safety before, during and after contact. I believe that that principle is robust and provides the assurance that hon. Members require. 
 That said, the Government recognise many of the concerns voiced by my hon. Friend the Member for Lancaster and Wyre. Hence, further new measures have been introduced since that sub-committee report. For example, from January 2005, we want to bring disclosure of allegations of domestic violence more to the forefront of cases. We continue to believe that there should not be a presumption of no contact but that allegations of domestic violence should be considered and findings of fact made before contact or residence decisions are made by the courts. From January, we will introduce a new form for use in applications under section 8 of the Children Act 1989. It will enable applicants and respondents in contact and residence applications to highlight more effectively allegations of domestic violence at the start of proceedings and for the court to make findings of fact before deciding on contact and residence applications. 
 Moreover, we recognise that it is not only physical violence that causes harm to children. As my hon. Friend the Member for Lancaster and Wyre said, witnessing violence against another person can have profound emotional effects on a child. That is why from January we will commence section 120 of the Adoption and Children Act 2002, which will strengthen the definition of harm by requiring courts to consider the damage to its health or development that a child may suffer from seeing or hearing about the ill treatment of someone else. 
 In summary, our measures provide the adequate assurance that hon. Members are seeking. They have the child's welfare as the paramount concern, and there are guidelines on how cases of domestic violence should be handled. We are making extra resources available for contact centres and introducing new systems to bring consideration of allegations of domestic violence to the forefront of proceedings. We also have the new definition of harm that the courts must consider. Together, those measures strike the right balance between ensuring the safety of the 
 resident parent and child and ensuring that, when it is in the child's best interest, he or she can have contact with both parents following separation. I realise that those are slightly different issues to those in new clauses 31, 34 and 13. 
 Turning to the points raised by the hon. Member for Romsey, the Government are not convinced that the new clauses are necessary as we believe that the existing procedures safeguard the welfare of the child. New clause 13, which the hon. Lady tabled, would put an additional duty on the court and the police where an application is made under section 34 of the Family Law Act 1986 for an order authorising an officer of the court to take charge of a child and deliver him or her to the applicant or a police constable. If the applicant has a residence order, the new clause would have the effect of establishing a presumption to return the child to the applicant after an alleged abduction by the other parent. If neither party has a residence order, the new clause is designed to place additional duties on the police and the courts before the section 34 recovery order can be made. I am afraid that all the new clauses disregard the requirements of section 34(1) of the Family Law Act 1986; indeed, they make no mention of them. 
 Section 34 states that before an order can be made for the recovery of a child there must be a part I order—usually a contact or residence order made under the Children Act 1989—or an order for the enforcement of that part I order, with time and place details requiring a person to give the child to the person concerned, which has not been obeyed. The section 34 order is a way of enforcing that original part I order when it has not been obeyed. Under the 1989 Act, when making any order concerning the upbringing of the child the court must have the welfare of the child as its paramount consideration. The court will have considered all the circumstances affecting the child's welfare when making the order that section 34 is intended to enforce. Although not all part I orders deal with residence, the court making such an order will have had an opportunity to look into any history or allegations of violence. New clause 13 is therefore unnecessary because enforcement cannot be triggered without a part I order being made. A section 34 application is not the place for rehearing the facts of the case; that is for the part I order hearing. If allegations of domestic violence arise after a part I order has been made, the parent making the allegations should properly go back to the court immediately and seek a variation of the order, not wait until an abduction has occurred to trigger measures regarding non-enforcement of the order. That is the proper way to proceed should circumstances arise after a part I order has been granted. 
 I appreciate that hon. Members who have tabled the new clauses have good intentions. As I have said, when a contact order has been made under the Children Act 1989, respondents have the right of appeal and can seek variation of the order. The court will consider any evidence of domestic violence, whether or not that is recorded in making its decision under the 1989 Act or in considering applications for variation. I explained earlier how 
 carefully the courts consider the welfare of the child when making orders under that Act, and how that is already set out in the framework and guidance under which they operate. Those are the appropriate ways to ensure that the child's safety is paramount and they are the best avenues through which to inquire after the child's circumstances. 
 The existing procedures under section 34 work effectively. The new clauses propose changes to address a problem that has arisen in a small number of cases. We are talking about the return of a child to an abusive parent using that section 34 procedure—the hon. Member for Romsey sought to illustrate that point in her example. The new clauses would require the police to make record searches and conduct inquiries into the welfare of the child. If the changes were made, the recovery of children whose return the courts had already ordered could be delayed. Such delay would be most unfortunate in the reverse circumstances of an abusive parent having removed the child. 
 The hon. Member for Romsey raised a number of points about ex parte orders, which are made in exceptional circumstances. By amending the Family Law Act 1996, the proposals also seek to restrict the making of ex parte residence and contact orders where the respondent to the application does not have the opportunity to attend court. That is not necessary or possible. What is more, such changes might not be in the best interests of the child where there is evidence that a party is wilfully refusing to attend court. The courts have developed strict guidelines on when ex parte orders should be made under section 8 of the Children Act 1989. For example, the Court of Appeal held in 1991 that it was undesirable for ex parte orders to be made except in the most exceptional circumstances, and then only on very strong evidence. An interim order of that kind would be followed as soon as possible by a hearing involving both parties, at which long-term orders would be made. 
 On the specific point raised in new clause 31 about the disclosure of the address of a refuge, I would be concerned if the rules to prevent that from happening were not already in place. I am advised that court orders for disclosure are dealt with under section 33 of the Family Law Act 1996 and that the amendment is not necessary. Anyone who does not wish to disclose their address is entitled not to do so under rule 10.21 of the family proceedings rules. The court will consider all the circumstances before making any order of disclosure that overrides a party's non-disclosure. A Court of Appeal decision has made it clear that the court should not order the police to disclose the location of women's refuges, so there is case law that prevents the disclosure of such information, and I do not believe that that part of new clause 31 is necessary. 
 These are complex matters, but the overriding principles are clear. We have sufficient strength in the part I order provisions to ensure that any history of abuse or domestic violence can be considered in a 
 case. The section 34 enforcement procedure can take place only where that part I order has already been made. 
 In respect of the other new clauses, although I understand the points that my hon. Friend the Member for Lancaster and Wyre made, we have to strike the right balance in ensuring that there is contact where possible, in a scenario that is safe for the child and for the child's parents and family, before, during and after such contact. The arrangements that we propose strike the right balance. With that, I hope that the motion will be withdrawn.

Hilton Dawson: I am grateful for my hon. Friend's response. I am pleased about his support for the principles of the Children Act 1989, with which I fundamentally agree. However, the problem is that the paramount principle of the 1989 Act, which is that all decisions should be made in the best interests of the child, has been compromised by case law and is being compromised by the judiciary's decisions.
 I am talking not only about the re O case from 1995, to which I referred earlier, but about the re H and R case of 1995, which set out a higher standard of proof where allegations of sexual abuse against children are concerned, and the re AvN case of 1996, which set out that the welfare of the child is not paramount in the case of committal proceedings. We have a serious problem with the way in which the judiciary is interpreting that fundamental aspect of children's law in a strong media environment in which genuine concerns about children who have lost contact with their parents for various reasons are being brought to the fore, but also being misapplied to circumstances in which the protection of children needs to be emphasised over and above everything else. 
 My hon. Friend also does the Committee a service by setting out the clear messages in ''Safety and Justice'' about the investment that the Government are making in contact centres—it is welcome, worth while and important, but it is still not enough, because we do not have effective coverage across the country—and the work that is being done on new forms and guidelines. However, the issue is more significant than that. 
 In ''Safety and Justice'', the Government say that they would welcome views on whether the arrangements provide the right level of support and safety for all family members. They ask those who think that they do not do so what else should be done. The answer contained in the new clauses does not come from me; it comes from Women's Aid, the NSPCC and a plethora of other organisations that are concerned with these issues and want things to be put right. 
 I genuinely believe that my hon. Friends have fallen into the trap of holding the ring between what they see as the competing and perhaps equal interests of those who emphasise the benefits of shared parenting and those who emphasise the importance of safe contact. That is not an equal contest. Safe contact is imperative. I am at one with my hon. Friend in wanting there to be excellent contact arrangements for 
 all children. No one wants to stop contact arrangements—even those between children and violent and abusive parents—where the child wants to have contact with the parent, but we know from deaths and abuse of children during contact visits that it is imperative that we improve the situation. 
 I apologise for any embarrassment that I may cause to Labour Members, because I have the greatest respect for my hon. Friends, but I am prepared to press new clauses 32 and 33.

Dominic Grieve: I have listened carefully to the debate and I am grateful that it has taken place. I have also listened with great care to the words of the hon. Member for Lancaster and Wyre; in due course, he might press the new clauses, as he has suggested.
 As a result of listening to the debate, it seems to me that there is a distinction between new clause 8 and new clause 33. They are aimed at achieving slightly different things. The Minister has persuaded me that it is undesirable to be as prescriptive as these proposals are, particularly in respect of new clause 33, which would effectively deny a party who had been involved in any act of violence—in the break-up of a marriage, for instance—the possibility of having contact or residence with their child. That is going too far. 
 I have had professional experience as a barrister of marital and relationship breakdown, in which people act in ways that they subsequently regret. If their behaviour is wholly out of character and is not particularly directed at the child, but at another person, to say that there is effectively an entire presumption against there ever being residence is to lay down a rule that could turn out to be harmful to the child concerned. 
 On the checklist, I was partially reassured by what the Minister said. At the same time, it strikes me as an innocuous addition, but he considerably reassured me about how the courts are operating. I therefore beg to ask leave to withdraw the motion. 
 Motion and clause, by leave, withdrawn.

Marion Roe: Do I understand correctly that you wish to press your new clauses later, Mr. Dawson?

Hilton Dawson: Yes.

Marion Roe: They will come after new clause 22.New clause 17 Register of Orders

New clause 17 - Register of Orders

'(1) The Secretary of State shall cause to be prepared and maintained a register of occupation or non-molestation orders made under Part 4 of the Family Act 1996 (c.27) (family homes and domestic violence) in a form appropriate to the purposes of ready inspection by any police constable. 
 (2) A court on making an order shall cause a certified copy to be sent to the Secretary of State for inclusion in the register.'.—[Mr. Heath.]
 Brought up, and read the First time.

David Heath: I beg to move, That the clause be read a Second time.
 If we are going to vote on the previous new clauses, I had better be brief in introducing this one, which returns us rather neatly at the end of our proceedings 
 to clause 1 and our discussions about the breach of non-molestation orders. If the procedure is to be effective, the police must have a mechanism by which they can know what orders are in place and therefore when an offence is committed. Otherwise, they could not possibly effect an arrest or thereby set in motion criminal proceedings. From my interpretation of what was said in another place, the Government have already conceded that point, but I hope that the Minister will tell us exactly what is proposed. 
 My noble Friend Lord Thomas of Gresford tabled a similar amendment in another place requiring that a register be drawn up for each police force. Baroness Scotland of Asthal rightly replied that that would not necessarily be the most helpful process. Anyone who has examined the Bichard inquiry would conclude that national rather than local databases are more likely to be effective. If people move between police authority areas, their previous history will be completely unknown in the area to which they have moved. I have tried to table a new clause that requires the creation and maintenance of a national register of orders, to which each court would be required to send a certified copy when an order is made so that it can be complete and readily accessible to police constables. 
 During the previous debate, in which I did not participate, one of the arguments advanced by the Under-Secretary was that it would take an inordinate amount of time to discover whether there were circumstances that would inhibit the making of a contact order. The register would help in that regard. If we had the register, there would be no reason for an inordinate delay; it would be extremely helpful for everybody concerned. He has therefore provided me with an additional argument in favour of my proposal. 
 I am sure that the Minister will not accept my new clause—that is the way of the world—but I hope that he will say that it is the Government's intention to create a national register. Indeed, that was the implication when Baroness Scotland suggested in another place that the Government intended to create a single database of orders. She also suggested that the creation of a register does not need to be a matter for primary legislation and therefore need not be included in the Bill. I accept that, but I argue that it would be better done through primary legislation. The Government have taken that view on other occasions. Indeed, I recall that section 98 of the Courts Act 2003 requires a 
''Register of judgments and orders etc.''
 to be created and maintained. 
 If it is right to have a national register of judgments and orders to try to ensure that fines or administration orders are maintained, it is more important to have the register that I propose, which is for the protection of vulnerable people. I hope that the Government will, first, confirm that they will produce such a database; secondly, tell us who will do it and how it will be arranged; thirdly, indicate the time scale in which it will be provided; and, fourthly, tell me why it is not helpful for the Bill to refer to it, as it seems entirely pertinent to its intentions and would make it work that much better.

Robert Walter: I support the new clause because I, too, think that it should be included in the Bill. The indications from the Government are that they are minded to create a register of the sort that is proposed, but that they do not see the necessity of putting it in the Bill. The register should feature in the Bill, because that will send a message to those who will administer it that Parliament thinks that it is important.
 The mechanisms for setting up a register are probably not too difficult to come by. There are registers of county court judgments, which are easily available to those who want to provide credit. The proposed register could be easily brought into play, and I support what the hon. Member for Somerton and Frome said: it is important that the proposal is included in the Bill, even if the Government believe that they will introduce it anyway. Accepting the new clause would send an important message.

Paul Goggins: I hope that my brief remarks will reassure the hon. Members for North Dorset and for Somerton and Frome and persuade them that the new clause is not needed.
 When the Bill was in the other place, my noble Friend Baroness Scotland explained that the Government are already working to create a register of orders. The register's purpose is to ensure the proper enforcement of orders, and it does not require primary legislation. The register will deal with a problem that was raised in response to the ''Safety and Justice'' consultation paper on domestic violence—if someone protected by an order travels to a different area and the respondent pursues them and breaches the order, the police in that area will not be aware of the existence of the order or its terms. A central register would give all police forces access to information about orders and the ability to enforce them wherever a breach occurs. 
 Our current plan is to create a database that is linked to the police national computer, which would fulfil the new clause's objective of ensuring that information on the register is readily available to all police officers. We have had discussions with the Police Information Technology Organisation, which we expect to submit an outline business case and specifications, I hope by the end of August or at the latest early September. 
 In respect of subsection (2) of the new clause, rules of court already provide for courts to send copies of non-molestation and occupation orders to the police, and we intend to consider revising the rules to clarify those obligations. Using primary legislation to place the courts under a statutory obligation to provide such documents is therefore unnecessary. The question should not be whether the proposal is included in the Bill; what really matters is that it is put into practice—something that the Government firmly intend to do as a matter of priority. I hope that the Committee is reassured by what I have said.

David Heath: On the latter point, I entirely agree with the Minister. The most important thing is that we have the proposal, not whether it is in the Bill. I am
 encouraged by what he said about the work that is already going on. We shall see whether PITO delivers, but we must hope that it will do so.
 I would not underestimate the difficulties of establishing the initial database. It is no good if it starts from its day of creation and is not retrospective in terms of extant orders. I wonder how much thought has been given to the difficulties of ensuring that we have a comprehensive database of current orders from day one. However, if the register is a good idea and the Government are going to introduce it, I do not understand why there is reticence about including that intention in a part of the Bill where it makes so much sense for it to be clearly stated. Plenty of other registers are referred to in Acts of Parliament, without any need for such reference other than because the Minister at the time, on advice received, thought that it was a good idea to make it clear that they would be created and maintained. This register is apparently in a secondary tier of importance, which does not require it to be stated in a statute. I do not accept that, and I do not think that the Minister accepts it. However, I am happy to take his assurances at face value. 
 Like me, the Minister knows that this part of the Bill will work only if the register is operational. The police know that, too. The Police Federation supports the position that he and I are adopting. It is regrettable that the register is not made explicit, but I am more concerned that it is established in due course. I would be grateful if he kept me advised of progress during the coming months, because it is important that we watch to ensure that what is promised is delivered. As he knows, it has not always been the case in police IT that what is promised has been delivered. 
 We are entitled to be cautious, which is why I should have liked something written into the Bill. However, in light of what the Minister said, I beg to ask leave to withdraw the motion. 
 Motion and clause, by leave, withdrawn.

New clause 22 - Definition of manslaughter

'(1) Unlawful homicide that would otherwise be murder should instead be manslaughter if the defendant acted in response to— 
 (a) gross provocation (meaning words or conduct or a combination of words and conduct which caused the defendant to have a justifiable sense of being seriously wronged); or 
 (b) fear of serious violence towards the defendant or another, or 
 (c) a combination of (a) and (b); and 
 a person of the defendant's age and of ordinary temperament, ie ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way. 
 (2) In deciding whether a person of the defendant's age and of ordinary temperament in the circumstances of the defendant might have acted in the same or a similar way, the court should take into account all the circumstances of the defendant other than matters (apart from his or her age) which bear only on his or her general capacity for self-control. 
 (3) The partial defence should not apply where— 
 (a) the provocation was incited by the defendant for the purpose of providing an excuse to use violence, or 
 (b) the defendant acted in pre-meditated desire for revenge. 
 (4) A person should not be treated as having acted in pre-meditated desire for revenge if he or she acted in fear of serious violence, merely because he or she was also angry towards the deceased for the conduct which engendered that fear. 
 (5) A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply.'.—[Vera Baird.]
 Brought up, and read the First time.

Vera Baird: I beg to move, That the clause be read a Second time.
 The new clause would redefine the defence of provocation and the matters concerning some 100 men a year who kill in the course of domestic violence and around 30 women a year who kill their violent partners. Many of the men and women who are charged with such killings run the defence of provocation to try to prevent themselves from being convicted of murder and to ensure that they face only a manslaughter charge, freeing them from a life sentence. 
 In the defence of provocation, the defendant says that the killing was done only because of a sudden, temporary loss of self-control provoked by something the victim did or said, and that it happened in circumstances in which a reasonable person would have reacted in exactly the same way. The point of that defence is that although the defendant has killed, his blameworthiness for over-reacting is mitigated by the provocation from the victim. In the first instance, the defence required that the provocative conduct should be wrong, because if the killing is mitigated, it does not make sense if the provocative conduct was something that a victim was entitled to do. However, the provision that it has to be wrong conduct has died away. One man was acquitted of murder and convicted only of manslaughter by provocation when he claimed that a baby crying provoked him. 
 In recent years, there have been domestic violence cases in which women have been killed and men have said that they were provoked to lose their self-control when the woman nagged. For one man, the final provocation was the way in which the woman moved the mustard pot across the table. In another case, a defence of provocation succeeded where a man had killed his wife because she told him that she was thinking of leaving him to go off with her gym trainer. 
 We have to remember that there are two parts to the defence of provocation: a person has to show not only that they lost their self-control because they were provoked, but that a reasonable person might have reacted in the same way. Surely, killing a partner for moving a mustard pot is not the behaviour of a reasonable person. 
 How did it come about that men have been acquitted of murder for that kind of killing? The culprit is the House of Lords—not the legislative, but the judicial body—in the case of R v. Morgan Smith in 2000. It said that when considering whether a reasonable person might have reacted to provocation as the defendant did, one should take into account all the characteristics of the defendant. There is a spark of sense in that; if one were considering a 15 year-old who lost his self-control, it would be very hard to judge him by the standard of a reasonable person who was fully 
 mature. Obviously, self-control is more easily lost by a 15 year-old, so one would have to attribute the defendant's age to the reasonable person when checking whether his response had been reasonable. 
 However, the Morgan Smith judgment said that one had to attribute all the defendant's characteristics to the reasonable person, which would include any characteristics that might lower his standards of self-control. When considering that second test, one had to consider a person's alcoholism or bad temper, and attribute those characteristics to the reasonable person when asking whether such a person would have reacted as the defendant did to the provocation. 
 If one attributes all the bad characteristics of the defendant to the reasonable person, the defendant is changed into the reasonable person and there is no second question to ask. The question is whether the defendant lost his self-control and whether that happened because of something that the woman said or did, whether right or wrong. That is all that is left as the test to decide whether somebody should be convicted of murder or manslaughter in such situations. 
 We are concerned here with domestic violence killings, and women also kill men in domestic violence situations. However, it is clear from experience and well recorded data that, typically, a man kills in a domestic violence situation from anger and sexual jealousy and a woman kills because she has been attacked yet again and battered before, and her not having done so from anger does not really fit the sudden loss of self control model of provocation. 
 Usually, the woman is under attack and she runs away, usually into the kitchen. She turns around as the man comes at her, sees something to defend herself with and stabs him with a kitchen knife. That is the usual thing. There is no defence of killing out of fear and despair that accommodates battered women as provocation accommodates men who kill out of anger. One might think that running into the kitchen, turning around when under attack and killing would be self-defence, but self-defence has to be proportionate to the scale of the attack to be a defence. If the woman is attacked only with a fist or boot and takes a knife and kills her attacker, the jury will not say that that is proportionate and will not acquit her on self-defence. 
 Disproportionate self-defence—self-defence that goes too far—sustains a conviction for murder, not manslaughter. So if I overreact to provocation in an angry way, as men do, I will be convicted only of manslaughter, but if I overreact to an attack and go too far in self-defence, I will be convicted of murder. 
 Women who kill by striking back after running from an attack are now defended on two bases. First, the defence can argue that because of her fear, the killing was done in proportionate self-defence. However, she will then fall back on to all that is available—provocation. She must say that she underwent a sudden and temporary loss of self-control because of the provocation of the attack on her and that she lashed out in circumstances in which a reasonable person would have done the same. The trouble is that self-defence—the first defence that 
 anyone would run—must be proportionate, which suggests control and measurement in the riposte of force, but that provocation is about a sudden and temporary loss of self-control and striking out, which is a disproportionate act. The two are inconsistent.

Dominic Grieve: Is not the nub of the problem that there is no such thing as proportionate self-defence that reduces murder to manslaughter? I have always seen that as the real mischief. Surely, the truth is that a person often has a legitimate ground to engage in self-defence, but oversteps the mark and faces the full force of the law.

Vera Baird: Yes. I believe that I have said that already. It is odd that if someone overreacts to provocation, they are convicted only of manslaughter, but if they overreact to an attack on them and go too far in self-defence, they are convicted of murder. There is no doubt that that is inconsistent.

David Heath: Is there not a further complication in British law: the mandatory sentence for murder? If we took a different view of the appropriateness of the mandatory sentence, we might not need those partial defences and someone could be sentenced appropriately for unlawful killing—murder—taking account of the circumstances.

Vera Baird: Of course there is a major issue surrounding the survival of the mandatory life sentence and whether it is desirable. There are arguments both ways. One is that it is better for a jury to decide culpability by having a sequence of offences into which it is possible to set the conduct of the offences rather than just saying that killing is killing and leaving the matter to a professional judge, but there are arguments the other way. There is no doubt that the hon. Members for Beaconsfield and for Somerton and Frome have put their fingers on difficulties. The difficulty raised by the hon. Member for Beaconsfield would be dealt with by the proposal.
 To return to my battered woman who has turned on her husband, she is now in the position of having said that her response was proportionate and measured, but is thrown back to saying that it was disproportionate and unmeasured because she lost her self-control through provocation. Both those defences often fail catastrophically because they are inconsistent, and the woman is convicted of murder in the absence of any other port of call for the jury. The jury can often see that provocation did not apply and that she did not suddenly lose her self-control and strike out like the man whose wife moved the mustard pot. She was frightened and overreacted out of fear, but that is no defence at all. 
 The position in the two stories that I have told of the two kinds of domestic violence murder is that, at the moment, violent men who lose their self-control get away with murder and battered women get convicted of murder. The Government are well aware of the problem, which is about treating gendered and different reactions equally. The Government asked the Law Commission to report 
 with dispatch with a view to changing the law on provocation in the Bill wherein the domestic violence aspect conveniently lies. The Law Commission has made proposals to improve the provocation defence not only for domestic violence cases, but across the board. Those proposals were well received by most of the senior judiciary, academics, the Fawcett Society, Justice for Women, Rights of Women, Southall Black Sisters and Women's Aid—in short, by all the organisations representing both victims of domestic violence who have been killed and those who defend battered women who have killed. 
 Briefly, under the proposal murder would be cut to manslaughter considering provocation only if the defendant acted in response to gross provocation—a much higher test—that caused the defendant to have a justifiable sense of being seriously wronged. That means that the original requirement that the provocative behaviour had to be wrong behaviour is restored. The jury, not the individual, would decide whether the defendant had a justifiable sense of wrong, but the two changes mean that the mustard pot is out as provocative conduct. It must be something that is completely wrong, not something that the individual feels might mitigate his loss of control.

Dominic Grieve: I agree that the mustard pot is an extreme example. My recollection of that case might be at fault, but I seem to recollect that there was a long history preceding the moving of the mustard pot of all sorts of acts that involved domestic violence in certain instances, which had been treated with complete forbearance by the assailant, who snapped over the moving of the mustard pot. That was why the defence was run in that way. One must be careful about the facts of what constitutes the final break in the provocation if a long history can explain why something that appears to be totally trivial—to any reasonable person, extraordinarily so—is nevertheless properly the foundations of such a defence.

Vera Baird: I do not know whether the hon. Gentleman is right about those facts. I would be pretty satisfied that it is likely that over the years there was more to it than the mustard pot but, under this new provision, that individual would have to show that what had happened, whether or not it was on the same occasion as the cruet incident, was gross provocation. That is a much better test than something as small as that and the other examples that I gave.
 Those are the two first changes that would restore provocation to where it was in the first place—at a high level before anybody, even partly, is justified in losing their temper and striking out, and only if the conduct was wrong, as considered by the jury. The second test—whether a reasonable person would have reacted to gross provocation in the same way—is also restored. Although it is still necessary to impute the defendant's characteristics to the reasonable person, one does not impute to the reasonable person any characteristics of the defendant that operate only to lower the defendant's self-control. There would therefore be no bad-tempered and alcoholic reasonable person. There would be a proper check of whether the behaviour of the individual in question 
 was reasonable according to the ordinary standard of self-control to which we are all accustomed. 
 That is how provocation would be rejigged. On the other hand, the provision would help battered women who kill because manslaughter, not murder, would be the offence if the killing had been carried out in fear of serious violence. That would include the woman in a kitchen who over-reacts and cannot merely call it self-defence in a balanced way, but who acted out of fear of serious violence and in so doing went beyond self-defence. It is, in a sense, disproportionate self-defence: as the hon. Member for Beaconsfield said, the new clause would introduce a missing link in available defences. 
 Consequently, a man or a woman justifiably feeling that they had been seriously wronged who killed when somebody with ordinary self-control would also have been driven to killing would have a defence. A woman or a man killing under serious fear of violence would for the first time have a defence that would allow them to be convicted only of manslaughter. That recognises both gender's reactions and treats them equally. It would redress the imbalance that has emerged from the recent atrophy of the provocation defence, which has given rise to injustices. Academics are satisfied that it would improve the law that deals with domestic violence killings of both kinds and, more importantly, it would improve the law of provocation consistently across the board. 
 The real point is that the examples of injustice that I have pointed out make it quite clear that such injustices are occurring daily. There are about 150 domestic violence killings of one kind or another each year. It is important to change the law soon. We now have a perfect model, or as good as dammit, brought about by a request from the Government to the Law Commission, which carried out a quick but thorough wide consultation and produced draft proposals and is now perfecting them as per the draft. The model is there for the taking as requested by the Government, it is in new clause 22 and I would like the Government to take it.

David Heath: I am pleased that the hon. and learned Lady has had the opportunity to table this proposal for debate. My only regret is that I may not hear the Minister's response, because I fear that I may be heading back to Edinburgh to continue my parliamentary duties before he gets a chance to respond. However, I want to make a very short speech, if I may.
 First, there is clearly an issue about the law. It is commonly held that there is a difficulty in the law of provocation, and there is an equal difficulty in finding the solution to it. I commend the Law Commission's work, because I think that it has done an extraordinarily good job in a very short time. 
 Secondly, the Law Commission identified a difficulty, and it put it far better than I could. The fact is that the present law is unsatisfactory. On the one hand, it is too broad. In the commission's own words: 
''It is morally offensive to regard as 'provocation' conduct by a victim which in truth calls for society's protection''
 and it gives the examples of 
''the crying baby, the court official seeking to enforce a court order, or a person in an unhappy relationship who is seeking to leave.''
 However, it goes on to say that the law is also too narrow and: 
''It affords (at least if strictly enforced) no defence to a person in an abusive relationship who acts in genuine fear of serious violence, unless the danger is imminent or they are acting under sudden and immediate loss of self-control.''
 Those are precisely the points made by the hon. and learned Member for Redcar. 
 As I said when I intervened, I think that a lot of the problems stem from our mandatory sentence for murder. That is something that no one is ever prepared to consider seriously because they say, quite rightly, that murder is a uniquely culpable crime. Nevertheless, they are not prepared to take into account that that crime can be committed in hugely varying circumstances. A court does not have discretion in sentencing at the moment. That seems to be the problem, because it means that we have to have slightly artificial concepts in order to provide for the circumstances surrounding the commission of an act of murder so that a court can take proper account of those circumstances. 
 In the absence of removal of the mandatory sentence and therefore the avoidance of the necessity of the provocation defence, we have a proposal from the Law Commission that I think has a lot of merit. The hon. and learned Lady will agree that what has been tabled is more of a description of what the Law Commission intends rather than something in statutory form. The commission would readily recognise that as well. The measure needs refinement before it can be entered into statute, but the most important thing is to hear from the Government whether they are entertaining the idea behind it. Did they ask the Law Commission to do the work and propose to take notice of what it said, or is it aborted work to some extent? 
 The hon. and learned Lady has done a great service to the Committee in introducing this measure. I shall listen carefully to other contributions and the Minister's response, and I hope that we shall have the opportunity to debate the matter more fully on the Floor of the House.

Dominic Grieve: I, too, welcome the hon. and learned Lady's decision to table the new clause for our consideration, and I look forward to an early opportunity—once the Law Commission's perfected report is available—for us to consider what I hope will be a short piece of legislation to introduce changes to the statute book.
 I share the hon. and learned Lady's commitment to trying to achieve a change to the present law. Considering what has been introduced, some of the areas that she touched on do not appear to me to be quite as straightforward as the interpretation she placed upon them. I shall identify three areas that we can consider later—I suspect that we shall not deal with the matter today. 
 First, I share her concern that provocation may be used as a catch-all excuse to get men who murder women off the hook of a murder charge. However, when changing the law of provocation we need to be careful not to exclude a situation such as the example I gave earlier of long, persistent, emotional abuse—and sometimes physical abuse—ending with what can appear to be a trivial incident from the equation of changing a charge of murder to manslaughter. There are circumstances where such a history ought to provide a defence. 
 The hon. and learned Lady raised an example relating to women being killed by men—it can apply the other way around, and I think that she accepts that—where a woman has a fear of persistent violence and therefore acts to protect herself. Equally, I suggest that there may be instances where the emotionally put-upon partner, who is dominated and abused over a long period, snaps because of something quite trivial. In those circumstances, I am not persuaded that they should be deprived of the opportunity to use the defence of provocation if they can show that something is the end product of an accumulation of events, not a trivial or minor event that could not sustain that defence on its own. It is an area on which I have an open mind, but it we shall have to consider the matter carefully when we come to legislate. 
 My second point relating to the question of the woman's defence, as it was put by the hon. and learned Lady, concerns the fear of serious violence towards the defendant or another. I have a great deal of sympathy with what she said, but I reiterate that part of the problem in this area is the lack of recognition under English law of excessive self-defence without provocation as a partial defence to a murder charge. That has always troubled me. The classic example falls right outside the category of domestic violence: the Martin case. We eventually got a manslaughter conviction on the basis of diminished responsibility when it seemed to me that there ought to be have been an opening for manslaughter conviction on the basis of excessive self-defence that fell short of murder. That is an example of how the Court of Appeal found a way round the problem. It is another area that we must consider. 
 Although I am extremely sympathetic to the change that the hon. and learned Lady has proposed, I do not think that this Bill is the place to do justice to what would be an important change to the law. In any event, it is clear that the other place, where the Bill was initiated, is in no position to do justice to any amendment that we might pass here. For those reasons, I feel that it must be put off for another day. 
 I have no idea what the Government's future programme is, nor do I know at what stage they are going to hit the buffers of another general election. However, the Minister would certainly have the Conservatives' co-operation if the Government chose to introduce a Bill to change the law on murder, along the lines of the preliminary report of the Law Commission. I have an open mind as to how we might go about that and what the final details would 
 be. It would need a lot of vigorous debate and careful scrutiny. I am grateful to the hon. and learned Lady for having raised the issue and I would like to be able to pursue it. However, that will take longer than we have now.

Paul Goggins: Like others who have spoken, I am indebted to my hon. and learned Friend the Member for Redcar for tabling the new clause and speaking to it so ably.
 My hon. and learned Friend, I and one or two others were involved in a similar debate a few days ago. It is important that the attention of the House is drawn to the issues that she has described. She will know that the Government fully share her concerns about the way in which the law on homicide currently operates in relation to domestic violence cases. In particular, we understand her concern that recent developments in the law have led to an extension of the scope and availability of the partial defence to murder of provocation, well beyond what was envisaged in section 3 of the Homicide Act 1957. Those developments have allowed for a subjective test for provocation based on the defendant's characteristics, rather than the more objective test of what a reasonable reaction to the provocation would be, as she so eloquently explained. 
 Of course, sexual jealousy, however much it might enrage the person who suffers from it, should never be accepted as a justification for killing someone, and neither should infidelity be an excuse for taking someone's life, however devastating it might be for the individual affected. There is also a deep worry that current sentencing in relation to manslaughter by reason of provocation in cases of domestic violence homicide does not adequately reflect their seriousness and the loss of life involved.

Dominic Grieve: I hope that the Minister will not consider this a flippant intervention, but I am interested in his comment that sexual jealousy can never justify homicide. Of course it cannot do so, but in many other European jurisdictions, it is defined as a crime of passion and attracts reduced sentences.

Paul Goggins: Yes, and that is not something that this House would agree with. None the less, I am grateful, as ever, for the hon. Gentleman's contribution.
 I want to consider briefly what the Law Commission proposes in the wider context of homicide. I can say to my hon. and learned Friend and to the whole Committee that, at first glance, the proposals have some attractive features. They would, however, represent a major change in the way in which the law works. Currently, provocation provides an excuse for homicide—an offender who has killed can be partially excused because he lost control. Under the Law Commission's proposal, the killing would be deemed partially justified in certain circumstances, as described in my hon. and learned Friend's new clause. That is a significant change that could have far-reaching ramifications. We need to consider carefully how the proposal would work in practice not only in the context of domestic violence, but in other circumstances. For example, it could be argued 
 that some gangland killers would meet the criteria set out in the new clause. 
 We need more time to think through the full implications of the proposals; it would be dangerous to adopt such a major change too quickly. I appreciate my hon. and learned Friend's desire for stronger legislation and greater protection for victims of domestic violence. The Government share that view, but we think that it makes sense to await the Law Commission's final report. We will, of course, think carefully about its recommendations before we consider taking legislative action. We need to check all the intended consequences of the proposed changes and to identify any unintended consequences. I warmly welcome the positive indications from both Opposition Front-Bench spokespeople that they would constructively engage with the Government if we were in a position to advance proposals for legislation on this matter. 
 The Law Commission is still working on its final report. Several groups have strongly welcomed its proposals, although areas of particular concern have also been identified. We must ensure that the Law Commission has the time to complete its work and to analyse all the responses. Its thorough analysis will be crucial in helping us to clarify our understanding of the issues involved. We need a solution that strengthens protection, commands public confidence and works in practice. We have a process in train and we will be better served in the long run by taking a little more time to get things right rather than attempting a partial solution that may give rise to further questions and difficulties in the future. 
 In that spirit, I urge my hon. and learned Friend to seek to withdraw the motion.

Vera Baird: I am grateful to the hon. Member for Somerton and Frome, who is not in his place—I accept that he cannot be there—for acknowledging that the new clause is a serious and successful attempt by the Law Commission to meet the twin problems that domestic violence killings throw up. I sympathise with his approach to the mandatory life sentence and the need for us all to consider that seriously in due course.
 The hon. Member for Beaconsfield made two points—I accept that they are probably not the only ones that he could have made—about whether the provision is capable of providing for a last-straw, relatively small incident against a background of smaller incidents that have built a person up to such a crescendo that they snap, as he put it. I am assured that the proposals embodied in the new clause will not change and that the consultation is almost complete, the drafting of the final report is on its way and there will be no significant change. That is very clear from the Law Commission's provisional consultation and current report, and I entirely accept that the new clause has been picked from a section of its report that was put into bold type to set out the principles that the new clause embodies, and that it is not a model section and no doubt would have merited the attention of a parliamentary draftsperson. 
 I understand that the proposals will not change. They are intended to cope with a long abusive relationship and the last-straw break in self-control. It is significant for the issue that has been raised by the hon. Gentleman that the words ''sudden'' and ''temporary'' have disappeared. Originally, provocation required a sudden and temporary loss of self-control, which implied a sort of snapping. It used to be down to the work of a large amount of case law to count what had happened back to earlier provocation that had contributed to the build-up. The words ''sudden'' and ''temporary'' have now gone, so the picture is clearly opened up to whatever gross provocation there was, whether it happened today, yesterday or earlier. The hon. Gentleman therefore does not need to worry very much about that. 
 The hon. Gentleman said that he had always thought it a lack that there was no defence of excessive self-defence that reduced murder to manslaughter. In effect, I do not see a significant difference between excessive self-defence and the limit of the defence of fear of serious violence, if that was the motive, which reduces the charge to manslaughter. The jury will have to consider first whether what happened was self-defence and, secondly, if it went too far to be self-defence, whether it was caused by a fear of serious violence. If so, the offence would be manslaughter only. That seems to me to be excessive self-defence.

Dominic Grieve: The hon. and learned Lady may be right. One of my difficulties is that I have not been able to give the matter the time and attention that it deserves. I have read the Law Commission's report and her new clause, but we must examine the new clause literally word by word and work out the various possibilities and permutations that flow from it.

Vera Baird: With that, I turn to the comments of my hon. Friend the Minister. I have heard them before, as he has heard my remarks before, in an Adjournment debate, but there we are; they are no worse for repetition. I was puzzled then, as I am now, about why he thinks that there is a move from an excusatory model to a justificatory model. As I understand it, both are both. The justification is the provocative conduct and the excusatory aspect is that the person lost their self-control. Both elements are present in the old model and the new model; there is no change.
 The Minister is not alone in this view—I think that the Attorney-General shares it—but I have never understood why a gangland killer could plead the defence of fear of serious violence. Such a fear would not, in the view of any sensible jury, qualify as something that caused the defendant to have a justifiable sense of being seriously wronged. The Minister's argument is not tenable once we consider in more detail the extras over and above just the fear of serious violence. 
 The model is a good one and it will not significantly change. Of course, persuaded by the ever-persuasive Minister, I shall seek to withdraw the motion, but we 
 should return to the new clause as quickly as possible, because injustice is being caused. The new clause is a recipe for remedying that, and all we need is another opportunity to peruse it thoroughly and to embody it in legislation. I hope that that can occur, but at this stage I beg to ask leave to withdraw the motion. 
 Motion and clause, by leave, withdrawn.

New Schedule 1 - Unfitness to stand trial and insanity:

Army Act 1955 (3 & 4 Eliz.2 c.18) and Air Force Act 1955 (3 & 4 Eliz.2 c.19) 
 1 For section 116 of the Army Act 1955 and of the Air Force Act 1955 (provisions where accused found insane) substitute— 
 ''Findings of unfitness to stand trial and insanity 
 115A Fitness to stand trial 
 (1) This section applies where on a trial by court-martial of a person the question arises (at the instance of the defence or otherwise) whether the accused is fit to stand trial. 
 (2) For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales. 
 (3) If, having regard to the nature of the supposed disability, the judge advocate is of opinion that it is expedient to do so and in the interests of the accused, he may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence. 
 (4) If, before the question of fitness to stand trial falls to be determined, the court finds the accused not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined. 
 (5) Subject to subsections (3) and (4) above, the question of fitness to stand trial shall be determined as soon as it arises. 
 (6) The question of fitness to stand trial shall be determined by the judge advocate sitting alone. 
 (7) A judge advocate shall not make a determination under subsection (6) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved. 
 115B Finding that the accused did the act or made the omission charged 
 (1) This section applies where in accordance with section 115A(6) above it is determined by a judge advocate that the accused is unfit to stand trial. 
 (2) The trial shall not proceed or further proceed but it shall be determined by the court— 
 (a) on the evidence (if any) already given in the trial, and 
 (b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the judge advocate under this section to put the case for the defence, 
 whether it is satisfied, as respects the charge or each of the charges on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. 
 (3) If as respects that charge or any of those charges the court is satisfied as mentioned in subsection (2) above, it shall make a finding that the accused did the act or made the omission charged against him. 
 (4) If as respects that charge or any of those charges the court is not so satisfied, the court shall find the accused not guilty as if on the charge in question the trial had proceeded to a conclusion. 
 (5) Where the question of fitness to stand trial was determined after arraignment of the accused, the determination under subsection 
(2) above shall be made by the court-martial by whom he was being tried. 
 116 Findings of insanity 
 (1) Where, on the trial of a person by court-martial, the court is satisfied, as respects the charge or any of the charges on which he is being tried, that the accused did the act or made the omission charged against him as the offence but that at the time of that act or omission he was insane, the court shall find that the accused was not guilty of that offence by reason of insanity. 
 (2) No finding under subsection (1) above shall be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved. 
 116A Powers to deal with person unfit to stand trial or not guilty by reason of insanity 
 (1) This section applies where, on a trial of a person by a court-martial— 
 (a) the accused is found to be unfit to stand trial and to have done the act or made the omission charged against him; or 
 (b) the accused is found not guilty by reason of insanity. 
 (2) The court shall make in respect of the accused— 
 (a) a hospital order (with or without a restriction order); 
 (b) a supervision order; or 
 (c) an order for his absolute discharge. 
 (3) Where— 
 (a) the offence to which the finding relates is an offence the sentence for which is fixed by law, and 
 (b) the court has power to make a hospital order, 
 the court shall make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection). 
 (4) The functions of the court under this section shall be exercised by the judge advocate (or, where subsection (5) below applies, the judicial officer) sitting alone, and section 95(2) and (3) above shall not apply. 
 (5) Any function of the court under this section exercisable after an adjournment or an appeal shall be exercisable by a judicial officer if— 
 (a) the court ordering the adjournment, or (as the case may be) the Courts-Martial Appeal Court, so orders; or 
 (b) the Judge Advocate General so directs. 
 (6) In this Act— 
 ''hospital order'' has the meaning given in section 37 of the Mental Health Act 1983; 
 ''restriction order'' has the meaning given to it by section 41 of that Act; 
 ''supervision order'' means an order which requires the person in respect of whom it is made (''the supervised person'') to be under the supervision of a person (''the supervising officer'') for a period specified in the order of not more than two years. 
 116B Orders under the Mental Health Act 
 (1) In relation to the making of an order by virtue of subsection (2)(a) of section 116A above, section 37 (hospital orders etc) of the Mental Health Act 1983 (''the 1983 Act'') shall have effect as if— 
 (a) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 116A above applies; 
 (b) the words after ''punishable with imprisonment'' and before ''or is convicted'' were omitted; and 
 (c) for subsections (4) and (5) there were substituted— 
 ''(4) Where an order is made under this section requiring a person to be admitted to a hospital (''a hospital order''), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it.'' 
 (2) In relation to a case where section 116A above applies but the court has not yet made one of the disposals mentioned in subsection (2) of that section— 
 (a) section 35 of the 1983 Act (remand to hospital for report on accused's mental condition) shall have effect with the omission of the words after paragraph (b) in subsection (3); 
 (b) section 36 of that Act (remand of accused person to hospital for treatment) shall have effect with the omission of the words ''(other than an offence the sentence for which is fixed by law)'' in subsection (2); 
 (c) references in sections 35 and 36 of that Act to an accused person shall be construed as including a person in whose case this subsection applies; and 
 (d) section 38 of that Act (interim hospital orders) shall have effect as if— 
 (i) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 116A above applies; and 
 (ii) the words ''(other than an offence the sentence for which is fixed by law)'' in that subsection were omitted. 
 (3) In relation to the making of any order under the 1983 Act by virtue of this Act, that Act shall apply— 
 (a) as if references to the Crown Court were references to a court-martial; 
 (b) as if references to an offender were references to a person in whose case section 116A above applies (references to an offence being construed accordingly); and 
 (c) with such further modifications as may be prescribed. 
 (4) The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an order is made under the 1983 Act by virtue of this Act. 
 Regulations under this subsection may in particular make provision for a person in respect of whom such an order has been made to be conveyed to, and detained in, a place of safety pending his admission to hospital. 
 (5) Where— 
 (a) a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 116A(1)(a) above, and 
 (b) the court also made a restriction order, and that order has not ceased to have effect, 
 the Secretary of State, if satisfied after consultation with the responsible medical officer that the person can properly be tried, may either remit the person for trial before a court-martial or direct that he be tried before a civil court. 
 In this subsection ''responsible medical officer'' means the registered medical practitioner in charge of the person's treatment. 
 (6) The Secretary of State may by regulations make provision supplementing subsection (5) above, including in particular— 
 (a) provision for a person in whose case that subsection applies to be conveyed to a court or place of detention and to be detained in such a place; 
 (b) provision for the hospital order and the restriction order to cease to have effect at such time as may be prescribed. 
 116C Supervision orders 
 (1) The court shall not make an order under section 116A(2)(b) above unless it is satisfied— 
 (a) that, having regard to all the circumstances of the case, the making of a supervision order is the most suitable means of dealing with the accused; 
 (b) that the supervising officer intended to be specified in the order is willing to undertake the supervision; and 
 (c) that arrangements have been made for any treatment which (under subsection (2) below) is intended to be specified in the order. 
 (2) An order under section 116A(2)(b) above may, in accordance with regulations under subsection (3) below, require the supervised person to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner. 
 (3) The Secretary of State may— 
 (a) by order direct that the definition of ''supervision order'' in section 116A(6) above shall be amended by substituting, for the period for the time being specified there, such period as may be specified in the order under this subsection; 
 (b) by regulations make further provision in relation to supervision orders. 
 (4) Regulations under subsection (3) above may in particular make provision— 
 (a) as to the procedure to be followed by a court-martial making a supervision order; 
 (b) as the requirements which may be specified in such an order; 
 (c) as to the descriptions of supervising officer who may be so specified; 
 (d) for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated; 
 (e) for the amendment and revocation of any supervision order. 
 116D Provisions supplementary to sections 115A to 116C 
 (1) In this section and sections 115A to 116C above— 
 ''duly approved'' means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act); 
 ''prescribed'' means prescribed by regulations made by the Secretary of State. 
 (2) For the purposes of the provisions of sections 115A and 116 of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence. 
 (3) Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then— 
 (a) if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor; 
 (b) if the accused is not so represented, the substance of the report shall be disclosed to him; and 
 (c) the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf. 
 (4) The power of the Secretary of State to make regulations under sections 116A to 116C above, and orders under section 116C(3) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'' 
 2 In section 225(1) of the Army Act 1955 and in section 223(1) of the Air Force Act 1955 (general provisions as to interpretation) insert at the appropriate places— 
 '' ''hospital order'' has the meaning assigned to it by section 116A(6) of this Act;''; 
 '' ''restriction order'' has the meaning assigned to it by section 116A(6) of this Act;''; 
 '' ''supervision order'' has the meaning assigned to it by section 116A(6) of this Act;''. 
 Naval Discipline Act 1957 (c.53) 
 3 For section 63 of the Naval Discipline Act 1957 (provisions where accused found insane) substitute— 
 ''Findings of unfitness to stand trial and insanity 
 62A Fitness to stand trial 
 (1) This section applies where on a trial by court-martial of a person the question arises (at the instance of the defence or otherwise) whether the accused is fit to stand trial. 
 (2) For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales. 
 (3) If, having regard to the nature of the supposed disability, the judge advocate is of opinion that it is expedient to do so and in the interests of the accused, he may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence. 
 (4) If, before the question of fitness to stand trial falls to be determined, the court finds the accused not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined. 
 (5) Subject to subsections (3) and (4) above, the question of fitness to stand trial shall be determined as soon as it arises. 
 (6) The question of fitness to stand trial shall be determined by the judge advocate sitting alone. 
 (7) A judge advocate shall not make a determination under subsection (6) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved. 
 62B Finding that the accused did the act or made the omission charged 
 (1) This section applies where in accordance with section 62A(6) above it is determined by a judge advocate that the accused is unfit to stand trial. 
 (2) The trial shall not proceed or further proceed but it shall be determined by the court— 
 (a) on the evidence (if any) already given in the trial, and 
 (b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the judge advocate under this section to put the case for the defence, 
 whether it is satisfied, as respects the charge or each of the charges on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. 
 (3) If as respects that charge or any of those charges the court is satisfied as mentioned in subsection (2) above, it shall make a finding that the accused did the act or made the omission charged against him. 
 (4) If as respects that charge or any of those charges the court is not so satisfied, the court shall find the accused not guilty as if on the charge in question the trial had proceeded to a conclusion. 
 (5) Where the question of fitness to stand trial was determined after arraignment of the accused, the determination under subsection (2) above shall be made by the court-martial by whom he was being tried. 
 63 Findings of insanity 
 (1) Where, on the trial of a person by court-martial, the court is satisfied, as respects the charge or any of the charges on which he is being tried, that the accused did the act or made the omission charged against him as the offence but that at the time of that act or omission he was insane, the court shall find that the accused was not guilty of that offence by reason of insanity. 
 (2) No finding under subsection (1) above shall be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved. 
 63A Powers to deal with person unfit to stand trial or not guilty by reason of insanity 
 (1) This section applies where, on a trial of a person by a court-martial— 
 (a) the accused is found to be unfit to stand trial and to have done the act or made the omission charged against him; or 
 (b) the accused is found not guilty by reason of insanity. 
 (2) The court shall make in respect of the accused— 
 (a) a hospital order (with or without a restriction order); 
 (b) a supervision order; or 
 (c) an order for his absolute discharge. 
 (3) Where— 
 (a) the offence to which the finding relates is an offence the sentence for which is fixed by law, and 
 (b) the court has power to make a hospital order, 
 the court shall make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection). 
 (4) The functions of the court under this section shall be exercised by the judge advocate (or, where subsection (5) below applies, the judicial officer) sitting alone, and sections 56A(3) and 57 above shall not apply. 
 (5) Any function of the court under this section exercisable after an adjournment or an appeal shall be exercisable by a judicial officer if— 
 (a) the court ordering the adjournment, or (as the case may be) the Courts-Martial Appeal Court, so orders; or 
 (b) the Judge Advocate of Her Majesty's Fleet so directs. 
 (6) In this Act— 
 ''hospital order'' has the meaning given in section 37 of the Mental Health Act 1983; 
 ''restriction order'' has the meaning given to it by section 41 of that Act; 
 ''supervision order'' means an order which requires the person in respect of whom it is made (''the supervised person'') to be under the supervision of a person (''the supervising officer'') for a period specified in the order of not more than two years. 
 63B Orders under the Mental Health Act 
 (1) In relation to the making of an order by virtue of subsection (2)(a) of section 63A above, section 37 (hospital orders etc) of the Mental Health Act 1983 (''the 1983 Act'') shall have effect as if— 
 (a) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 63A above applies; 
 (b) the words after ''punishable with imprisonment'' and before ''or is convicted'' were omitted; and 
 (c) for subsections (4) and (5) there were substituted— 
 ''(4) Where an order is made under this section requiring a person to be admitted to a hospital (''a hospital order''), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it.'' 
 (2) In relation to a case where section 63A above applies but the court has not yet made one of the disposals mentioned in subsection (2) of that section— 
 (a) section 35 of the 1983 Act (remand to hospital for report on accused's mental condition) shall have effect with the omission of the words after paragraph (b) in subsection (3); 
 (b) section 36 of that Act (remand of accused person to hospital for treatment) shall have effect with the omission of the words ''(other than an offence the sentence for which is fixed by law)'' in subsection (2); 
 (c) references in sections 35 and 36 of that Act to an accused person shall be construed as including a person in whose case this subsection applies; and 
 (d) section 38 of that Act (interim hospital orders) shall have effect as if— 
 (i) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 63A above applies; and 
 (ii) the words ''(other than an offence the sentence for which is fixed by law)'' in that subsection were omitted. 
 (3) In relation to the making of any order under the 1983 Act by virtue of this Act, that Act shall apply— 
 (a) as if references to the Crown Court were references to a court-martial; 
 (b) as if references to an offender were references to a person in whose case section 63A above applies (references to an offence being construed accordingly); and 
 (c) with such further modifications as may be prescribed. 
 (4) The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an order is made under the 1983 Act by virtue of this Act. 
 Regulations under this subsection may in particular make provision for a person in respect of whom such an order has been made to be conveyed to, and detained in, a place of safety pending his admission to hospital. 
 (5) Where— 
 (a) a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 63A(1)(a) above, and 
 (b) the court also made a restriction order, and that order has not ceased to have effect, 
 the Secretary of State, if satisfied after consultation with the responsible medical officer that the person can properly be tried, may either remit the person for trial before a court-martial or direct that he be tried before a civil court. 
 In this subsection ''responsible medical officer'' means the registered medical practitioner in charge of the person's treatment. 
 (6) The Secretary of State may by regulations make provision supplementing subsection (5) above, including in particular— 
 (a) provision for a person in whose case that subsection applies to be conveyed to a court or place of detention and to be detained in such a place; 
 (b) provision for the hospital order and the restriction order to cease to have effect at such time as may be prescribed. 
 63C Supervision orders 
 (1) The court shall not make an order under section 63A(2)(b) above unless it is satisfied— 
 (a) that, having regard to all the circumstances of the case, the making of a supervision order is the most suitable means of dealing with the accused; 
 (b) that the supervising officer intended to be specified in the order is willing to undertake the supervision; and 
 (c) that arrangements have been made for any treatment which (under subsection (2) below) is intended to be specified in the order. 
 (2) An order under section 63A(2)(b) above may, in accordance with regulations under subsection (3) below, require the supervised person to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner. 
 (3) The Secretary of State may— 
 (a) by order direct that the definition of ''supervision order'' in section 63A(6) above shall be amended by substituting, for the period for the time being specified there, such period as may be specified in the order under this subsection; 
 (b) by regulations make further provision in relation to supervision orders. 
 (4) Regulations under subsection (3) above may in particular make provision— 
 (a) as to the procedure to be followed by a court-martial making a supervision order; 
 (b) as the requirements which may be specified in such an order; 
 (c) as to the descriptions of supervising officer who may be so specified; 
 (d) for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated; 
 (e) for the amendment and revocation of any supervision order. 
 63D Provisions supplementary to sections 62A to 63C 
 (1) In this section and sections 62A to 63C above— 
 ''duly approved'' means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act); 
 ''prescribed'' means prescribed by regulations made by the Secretary of State. 
 (2) For the purposes of the provisions of sections 62A and 63 of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence. 
 (3) Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then— 
 (a) if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor; 
 (b) if the accused is not so represented, the substance of the report shall be disclosed to him; and 
 (c) the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf. 
 (4) The power of the Secretary of State to make regulations under sections 63A to 63C above, and orders under section 63C(3) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'' 
 4 In the proviso to section 56(3) of that Act (court-martial not to be adjourned for more than six days), after ''except with the consent of the accused and the prosecuting authority'' insert '',or for the purpose of exercising powers under section 63A of this Act,''. 
 5 In section 135(1) of that Act (general provisions as to interpretation) insert at the appropriate places— 
 '' ''hospital order'' has the meaning assigned to it by section 63A(6) of this Act;''; 
 '' ''restriction order'' has the meaning assigned to it by section 63A(6) of this Act;''; 
 '' ''supervision order'' has the meaning assigned to it by section 63A(6) of this Act;''. 
 Courts-Martial (Appeals) Act 1968 (c.20) 
 6 The Courts-Martial (Appeals) Act 1968 is amended as follows. 
 7 For section 16 substitute— 
 ''16 Substitution of finding of insanity or findings of unfitness to stand trial etc. 
 (1) This section applies where, on an appeal against conviction, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion— 
 (a) that the proper finding would have been one of not guilty by reason of insanity; or 
 (b) that the case is not one where there should have been a finding of not guilty, but that there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him. 
 (2) The Appeal Court shall make in respect of the appellant— 
 (a) a hospital order (with or without a restriction order); 
 (b) a supervision order; or 
 (c) an order for his absolute discharge. 
 (3) Where— 
 (a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and 
 (b) the Appeal Court have power to make a hospital order, 
 the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection). 
 (4) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial. 
 The sections are— 
 (a) where the relevant Service Act is the Army Act, sections 116B to 116D of that Act; 
 (b) where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act; 
 (c) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act. 
 (5) Where the Appeal Court make an interim hospital order by virtue of this section— 
 (a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and 
 (b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer. 
 (6) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court.'' 
 8 In section 21 (appeal against finding of not guilty by reason of insanity), in subsection (1), after ''except'' insert ''section 8(2) and''. 
 9 In section 22 (consequences where appeal under section 21 allowed), at the beginning of subsection (4) insert ''Subject to section 23 below,''. 
 10 For section 23 substitute— 
 ''23 Substitution of findings of unfitness to stand trial etc. 
 (1) This section applies where, on an appeal under section 21 of this Act, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion that— 
 (a) the case is not one where there should have been a finding of not guilty; but 
 (b) there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him. 
 (2) The Appeal Court shall make in respect of the appellant— 
 (a) a hospital order (with or without a restriction order); 
 (b) a supervision order; or 
 (c) an order for his absolute discharge. 
 (3) Where— 
 (a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and 
 (b) the Appeal Court have power to make a hospital order, 
 the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection). 
 (4) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial. 
 The sections are— 
 (a) where the relevant Service Act is the Army Act, sections 116B to 116D of that Act; 
 (b) where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act; 
 (c) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act. 
 (5) Where the Appeal Court make an interim hospital order by virtue of this section— 
 (a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and 
 (b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer. 
 (6) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court.'' 
 11 (1) Section 24 (appeal against finding of unfitness to stand trial) is amended as follows. 
 (2) In subsection (1)— 
 (a) for ''his trial'' substitute ''trial and to have done the act or made the omission charged against him''; 
 (b) for ''the finding'' substitute ''either or both of those findings''. 
 (3) In subsection (2), after ''except'' insert ''section 8(2) and''. 
 12 For section 25 substitute— 
 ''25 Disposal of appeal under s.24 
 (1) This section applies to appeals under section 24 of this Act. 
 (2) Where the Appeal Court allow an appeal against a finding that the appellant is unfit to stand trial— 
 (a) the appellant may be tried accordingly for the offence with which he was charged; and 
 (b) the Court may make such orders as appear to them necessary or expedient pending any such trial for the custody, release or continued detention of the appellant. 
 (3) Where, otherwise than in a case falling within subsection (2) above, the Appeal Court allow an appeal against a finding that the appellant did the act or made the omission charged against him, the Court shall, in addition to quashing the finding, direct a finding of not guilty to be recorded (but not a finding of not guilty by reason of insanity).'' 
 13 After that section insert— 
 ''Appeal against order made in cases of insanity or unfitness to stand trial 
 25A Right of appeal against hospital order etc. 
 (1) A person in whose case a court-martial— 
 (a) makes a hospital order or interim hospital order by virtue of the relevant Service Act, or 
 (b) makes a supervision order under the relevant Service Act, 
 may appeal to the Appeal Court against the order. 
 (2) An appeal under this section lies only with the leave of the Appeal Court. 
 25B Disposal of appeal under s.25A 
 (1) If on an appeal under section 25A of this Act the Appeal Court consider that the appellant should be dealt with differently from the way in which the court below dealt with him— 
 (a) they may quash any order which is the subject of the appeal; and 
 (b) they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the court below had power to make. 
 (2) The fact that an appeal is pending against an interim hospital order under the Mental Health Act 1983 shall not affect the power of the court below to renew or terminate the order or deal with the appellant on its termination. 
 (3) Where the Appeal Court make an interim hospital order by virtue of this section— 
 (a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and 
 (b) section 38(7) of the said Act of 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer. 
 (4) The fact that an appeal is pending against a supervision order under the relevant Service Act shall not affect any power conferred on any other court to revoke or amend the order. 
 (5) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court.'' 
 14 (1) Section 57 (interpretation) is amended as follows. 
 (2) In subsection (1) insert at the relevant places— 
 '' ''duly approved'' means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);''; 
 '' ''hospital order'' has the meaning given in section 37 of the Mental Health Act 1983;''; 
 '' ''interim hospital order'' has the meaning given in section 38 of that Act;''; 
 '' ''judicial officer'' has the same meaning as in the relevant Service Act;''; 
 '' ''restriction order'' has the meaning given to it by section 41 of the Mental Health Act 1983;''; 
 '' ''supervision order'' means an order which requires the person in respect of whom it is made to be under the supervision of another person for a period specified in the order of not more than two years.'' 
 (3) After subsection (2) insert— 
 ''(2A) For the purposes of the provisions of sections 16 and 23 of this Act which permit the Appeal Court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (2B) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the Appeal Court may require the signatory of any such report to be called to give oral evidence. 
 (2B) Where, in pursuance of a direction of the Appeal Court, any such report is tendered in evidence otherwise than by or on behalf of the appellant, then— 
 (a) if the appellant is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor; 
 (b) if the appellant is not so represented, the substance of the report shall be disclosed to him; and 
 (c) the appellant may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the appellant or on his behalf.'' 
 15 (1) Schedule 3 (modifications in relation to prisoners of war) is amended as follows. 
 (2) In paragraph 3— 
 (a) in paragraph (a), for ''or 15'' substitute '',14A, 15 or 25A''; 
 (b) omit paragraph (b). 
 (3) After paragraph 3 insert— 
 ''3A In relation to a protected prisoner of war, sections 16 and 23 of this Act shall each have effect as if the following subsection were substituted for subsection (4)— 
 ''(4) The provisions of a Royal Warrant shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.'' ' ''.—[Paul Goggins.]
 Brought up, read the First and Second time, and added to the Bill.

New Schedule 2 - Powers of authorised officers

The following is the Schedule inserted after Schedule 4 to the Magistrates' Courts Act 1980 (c.43)— 
 ''SCHEDULE 4A Section 125BA 
 Powers of authorised officers executing warrants 
 Meaning of ''authorised officer'' etc 
 1 In this Schedule— 
 ''authorised officer'', in relation to a warrant, means a person who is entitled to execute the warrant by virtue of— 
 (a) section 125A of this Act (civilian enforcement officers); or 
 (b) section 125B of this Act (approved enforcement agencies); 
 ''premises'' includes any place and, in particular, includes— 
 (a) any vehicle, vessel, aircraft or hovercraft; 
 (b) any offshore installation within the meaning of the Mineral Workings (Offshore Installations) Act 1971; and 
 (c) any tent or movable structure. 
 Entry to execute warrant of arrest etc 
 2 (1) An authorised officer may enter and search any premises for the purpose of executing a warrant of arrest, commitment or detention issued in connection with the enforcement of a fine or other order imposed or made on conviction. 
 (2) The power may be exercised— 
 (a) only to the extent that it is reasonably required for that purpose; and 
 (b) only if the officer has reasonable grounds for believing that the person whom he is seeking is on the premises. 
 (3) In relation to premises consisting of two or more separate dwellings, the power is limited to entering and searching— 
 (a) any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any other such dwelling; and 
 (b) any such dwelling in which the officer has reasonable grounds for believing that the person whom he is seeking may be. 
 Entry to levy distress 
 3 (1) An authorised officer may enter and search any premises for the purpose of executing a warrant of distress issued under section 76 of this Act for default in paying a sum adjudged to be paid by a conviction. 
 (2) The power may be exercised only to the extent that it is reasonably required for that purpose. 
 Searching arrested persons 
 4 (1) This paragraph applies where a person is arrested in pursuance of a warrant of arrest, commitment or detention issued in connection with the enforcement of a fine or other order imposed or made on conviction. 
 (2) An authorised officer may search the arrested person, if he has reasonable grounds for believing that the arrested person may present a danger to himself or others. 
 (3) An authorised officer may also search the arrested person for anything which he might use to assist him to escape from lawful custody. 
 (4) The power conferred by sub-paragraph (3) above may be exercised— 
 (a) only if the officer has reasonable grounds for believing that the arrested person may have concealed on him anything of a kind mentioned in that sub-paragraph; and 
 (b) only to the extent that it is reasonably required for the purpose of discovering any such thing. 
 (5) The powers conferred by this paragraph to search a person are not to be read as authorising the officer to require a person to remove any of his clothing in public other than an outer coat, a jacket or gloves; but they do authorise the search of a person's mouth. 
 (6) An officer searching a person under sub-paragraph (2) above may seize and retain anything he finds, if the officer has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or to any other person. 
 (7) An officer searching a person under sub-paragraph (3) above may seize and retain anything he finds, if he has reasonable grounds for believing that the person might use it to assist him to escape from lawful custody. 
 Use of force 
 5 An authorised officer may use reasonable force, if necessary, in the exercise of a power conferred on him by this Schedule.''.'.—[Paul Goggins.]
 Brought up, read the First and Second time, and added to the Bill.

New Schedule 3 - Procedure on breach of community penalty etc

Interpretation 
 1 In this Schedule— 
 ''the Sentencing Act'' means the Powers of Criminal Courts (Sentencing) Act 2000 (c.6); 
 ''the 2003 Act'' means the Criminal Justice Act 2003 (c.44). 
 Detention and training orders 
 2 (1) Section 104 of the Sentencing Act (breach of supervision requirements of detention and training order) is amended as follows. 
 (2) In subsection (1) (issue of summons or warrant by justice of the peace)— 
 (a) omit the words ''acting for a relevant petty sessions area''; 
 (b) in paragraph (a), omit the words ''before a youth court acting for the area''; 
 (c) in paragraph (b), omit the words ''requiring him to be brought before such a court''. 
 (3) For subsection (2) substitute— 
 ''(2) Any summons or warrant issued under this section shall direct the offender to appear or be brought— 
 (a) before a youth court acting for the petty sessions area in which the offender resides; or 
 (b) if it is not known where the offender resides, before a youth court acting for same petty sessions area as the justice who issued the summons or warrant.'' 
 Suspended sentence supervision orders 
 3 (1) Section 123 of the Sentencing Act (breach of requirement of suspended sentence supervision order) is amended as follows. 
 (2) In subsection (1) (issue of summons or warrant by justice of the peace) omit the words ''acting for the petty sessions area for the time being specified in the order''. 
 (3) For subsection (2) substitute— 
 ''(2) Any summons or warrant issued under this section shall direct the offender to appear or be brought— 
 (a) before a magistrates' court for the petty sessions area in which the offender resides; or 
 (b) if it is not known where the offender resides, before a magistrates' court acting for the petty sessions area for the time being specified in the suspended sentence supervision order.'' 
 (4) After subsection (4) insert— 
 ''(5) Where a magistrates' court dealing with an offender under this section would not otherwise have the power to amend the suspended sentence supervision order under section 124(3) below (amendment by reason of change of residence), that provision has effect as if the reference to a magistrates' court acting for the petty sessions area for the time being specified in the suspended sentence supervision order were a reference to the court dealing with the offender.'' 
 Community orders under the Sentencing Act 
 4 (1) Schedule 3 to the Sentencing Act (breach, revocation and amendment of certain community orders), as it has effect on the day on which this Act is passed, is amended as follows. 
 (2) In paragraph 3(1) (issue of summons or warrant by justice of the peace) omit the words ''acting for the petty sessions area concerned''. 
 (3) In paragraph 3(2) (court before which offender to appear or be brought), for paragraph (c) substitute— 
 ''(c) in the case of a relevant order which is not an order to which paragraph (a) or (b) applies, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned.'' 
 (4) In paragraph 4 (powers of magistrates' court to deal with breach), after sub-paragraph (3) insert— 
 ''(3A) Where a magistrates' court dealing with an offender under sub-paragraph (1)(a), (b) or (c) above would not otherwise have the power to amend the relevant order under paragraph 18 below (amendment by reason of change of residence), that paragraph has effect as if the reference to a magistrates' court acting for the petty sessions area concerned were a reference to the court dealing with the offender.'' 
 Curfew orders and exclusion orders 
 5 (1) Schedule 3 to the Sentencing Act (breach, revocation and amendment of curfew orders and exclusion orders), as substituted by paragraph 125 of Schedule 32 to the 2003 Act, is amended as follows. 
 (2) In paragraph 3(1) (issue of summons or warrant by justice of the peace) omit the words ''acting for the petty sessions area concerned''. 
 (3) In paragraph 3(2) (court before which offender to appear or be brought), for paragraph (b) substitute— 
 ''(b) in the case of a relevant order which is not an order to which paragraph (a) above applies, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned.'' 
 (4) In paragraph 4 (powers of magistrates' court to deal with breach), after sub-paragraph (4) insert— 
 ''(4A) Where a magistrates' court dealing with an offender under sub-paragraph (2)(a) or (b) above would not otherwise have the power to amend the relevant order under paragraph 15 below (amendment by reason of change of residence), that paragraph has effect as if the reference to a magistrates' court acting for the petty sessions area concerned were a reference to the court dealing with the offender.'' 
 Attendance centre orders 
 6 (1) Schedule 5 to the Sentencing Act (breach, revocation and amendment of attendance centre orders) is amended as follows. 
 (2) In paragraph 1(1) (issue of summons or warrant by justice of the peace), omit the words— 
 (a) ''acting for a relevant petty sessions area''; 
 (b) ''before a magistrates' court acting for the area''; 
 (c) ''requiring him to be brought before such a court''. 
 (3) For paragraph 1(2) substitute— 
 ''(2) Any summons or warrant issued under this paragraph shall direct the offender to appear or be brought— 
 (a) before a magistrates' court acting for the petty sessions area in which the offender resides; or 
 (b) if it is not known where the offender resides, before a magistrates' court acting for the petty sessions area in which is situated the attendance centre which the offender is required to attend by the order or by virtue of an order under paragraph 5(1)(b) below.'' 
 (4) In paragraph 2 (powers of magistrates' court to deal with breach), after sub-paragraph (5) insert— 
 ''(5A) Where a magistrates' court dealing with an offender under sub-paragraph (1)(a) above would not otherwise have the power to amend the order under paragraph5(1)(b) below (substitution of different attendance centre), that paragraph has effect as if references to an appropriate magistrates' court were references to the court dealing with the offender.'' 
 Community orders under the 2003 Act 
 7 (1) Schedule 8 to the 2003 Act (breach, revocation or amendment of community order) is amended as follows. 
 (2) In paragraph 7(2) (issue of summons or warrant by justice of the peace) omit the words ''acting for the petty sessions area concerned''. 
 (3) In paragraph 7(3) (court before which offender to appear or be brought), for paragraph (b) substitute— 
 ''(b) in any other case, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned.'' 
 (4) In paragraph 9 (powers of magistrates' court to deal with breach), after sub-paragraph (5) insert— 
 ''(5A) Where a magistrates' court dealing with an offender under sub-paragraph (1)(a) would not otherwise have the power to amend the community order under paragraph16 (amendment by reason of change of residence), that paragraph has effect as if the references to the appropriate court were references to the court dealing with the offender.'' 
 (5) In paragraph 27 (provision of copies of orders), at the end of sub-paragraph (1)(c) insert '', and 
 (d) where the court acts for a petty sessions area other than the one specified in the order prior to the revocation or amendment, provide a copy of the revoking or amending order to a magistrates' court acting for the area so specified.'' 
 Suspended sentence orders under the 2003 Act 
 8 (1) Schedule 12 to the 2003 Act (breach or amendment of suspended sentence order, and effect of further conviction) is amended as follows. 
 (2) In paragraph 6(2) (issue of summons or warrant by justice of the peace) omit the words ''acting for the petty sessions area concerned''. 
 (3) In paragraph 6(3) (court before which offender to appear or be brought), for paragraph (b) substitute— 
 ''(b) in any other case, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned.'' 
 (4) In paragraph 8 (powers of magistrates' court to deal with breach), after sub-paragraph (4) insert— 
 ''(4A) Where a magistrates' court dealing with an offender under sub-paragraph (2)(c) would not otherwise have the power to amend the suspended sentence order under paragraph 14 (amendment by reason of change of residence), that paragraph has effect as if the references to the appropriate court were references to the court dealing with the offender.'' 
 (5) In paragraph 22 (provision of copies of orders), at the end of sub-paragraph (1)(c) insert '', and 
 (d) where the court acts for a petty sessions area other than the one specified in the order prior to the revocation or amendment, provide a copy of the revoking or amending order to a magistrates' court acting for the area so specified.'' 
 Local justice areas 
 9 The power conferred by section 109(5)(b) of the Courts Act 2003 (c.39) to amend or repeal any enactment, other than one contained in an Act passed in a later session, includes power to amend any such enactment as amended by this Schedule, but only for the purpose of making consequential provision in connection with the establishment of local justice areas under section 8 of that Act.'.—[Paul Goggins.]
 Brought up, read the First and Second time, and added to the Bill.

Title

Amendments made: No. 101, in title, line 4, after 'offence;', insert 
'to make provision for the payment of surcharges by offenders;'.
 No. 125, in title, line 7, after 'insanity;' insert 
'to make provision about the execution of warrants;'.
 No. 126, in title, line 7, after 'insanity;' insert 
'to make provision about the enforcement of orders imposed on conviction;'.
 No. 127, in title, line 9, leave out 'and'. 
 No. 128, in title, line 10, after second 'offences' insert 
'; and to make provision about the recovery of compensation from offenders'.—[Paul Goggins.]

Paul Goggins: On a point of order, Dame Marion. Our proceedings are almost at an end, and I do not want the moment to pass without making a few remarks. I hope that you will forgive me for doing so. On my own behalf and I am sure on behalf of the whole Committee, I offer warm thanks to you for the way in which you and Mr. Benton have chaired our proceedings. You have done so effectively, but also with sympathy, which is much appreciated, particularly given the issues that we have discussed.
 I also extend thanks to our Clerk, Mr. Cooke. I hope that he will forgive me for sharing this little secret with other members of the Committee: he has a young boy, Oscar, who I think is five or six months old and wakes him as a human alarm clock at five o'clock every morning. The fact that he has managed to stay awake during our proceedings has therefore been impressive, but he has done far more than that. He has been a very effective support to a number of hon. Members who wanted to discuss matters with him. We are very grateful to Mr. Cooke. 
 We are also grateful to the Hansard writers, who have been as diligent as ever. 
 I extend particularly warm thanks to the Bill team, who have been an effective support to me and to any hon. Member who has approached them for more information or explanation. 
 I thank all the voluntary organisations and other bodies outside this place that have helped so much to inform our deliberations by suggesting amendments, producing briefings and bringing their experience to bear in our debates. That is a very important part of the parliamentary process. 
 I thank the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Shipley (Mr. Leslie), and my right hon. and learned Friend the Solicitor-General for their effective support and the work that they have done. 
 I am indebted to the hon. Member for Chesham and Amersham for the way in which she has approached our debates. Her concern in these issues has been evident throughout everything that she has said, and I do not think that any of us will hear a stray mobile phone ever again without reflecting on our proceedings here. 
 I thank the hon. Member for Beaconsfield for his usual forensic and thoughtful approach to all the issues. I also thank the hon. Member for Romsey and the hon. Member for Somerton and Frome, who is even now hurtling up on his way to Edinburgh. He will always remind me of courts martial, if nothing else, as a result of these deliberations. 
 To the hon. Member for North Down (Lady Hermon), I can say that her championing of the cause of the people of Northern Ireland has been deeply impressive throughout. Perhaps I may beg her for one last time to accept that I share her aspiration 
 but that we have a different route, and I ask her again to understand my position on that. 
 I thank all my hon. Friends who have contributed. There has often been as much of a challenge from my side of the Committee as from elsewhere in it, and I applaud and welcome that. My hon. Friends all speak with a breadth of experience and understanding of these issues, and in many cases from years of campaigning on them. Their contact with those issues at the sharp end has been evident in everything that they have said. 
 I thank the Whips, particularly my hon. Friend the Member for Nottingham, East (Mr. Heppell), for keeping us always on the ball and pretty well on time, and I thank my hon. Friend the Member for Colne Valley (Kali Mountford), who provides far more than bits of paper in support of the Minister. I am very grateful indeed to her. 
 Our proceedings have been constructive, thoughtful and an attempt to find real solutions. So often in the past, domestic violence and the victims of that crime have been hidden in our criminal justice system. In our scrutiny of the Bill we have helped to raise the issue's profile and, more importantly, to shape some solutions. 
 Finally, I say to all members of the Committee that we have listened carefully to the debate. I hope that the fruits of that listening will be evident on Report, but in the meantime, I thank everyone for their contribution.

Cheryl Gillan: Further to that point of order, Dame Marion, I do not think that I could make any more charming summation of our proceedings than the Minister has done, so I shall not attempt to do so. However, I should like to include in the thanks the Doorkeepers and the police who keep us safe and secure in the Committee. I should also like to thank, for my part, my colleagues. I look forward to Report and Third Reading.

Sandra Gidley: Further to that point of order, Dame Marion, I do not wish to repeat everything that has been said, but I should like to add my name to the sentiments expressed. I particularly thank the Minister for keeping us all so well informed, which makes a difference when working on a Bill. There are some minor frustrations in seeing the reversal of everything that happened in the other place, and only one small change has come from the Opposition Benches, but on the whole I have been very impressed with the way in which Members on both sides have worked together, and I hope that that spirit continues.
 I wish the hon. Member for Chesham and Amersham the best of luck with mobile technology, and hope that she does not suffer any future disasters.

Marion Roe: On behalf of my co-Chairman and myself, I thank the Minister for his kind remarks.
 Bill, as amended, to be reported. 
 Committee rose at eight minutes past Five o'clock.